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RTERS1 
\* the rsars 

Political, Personal and Property 



RIGHTS 



OF A CITIZEN OF THE UNITED STATES. 



HOW TO EXERCISE AND HOW TO PRESERVE THEM. 



TOGETHER WITH 

i. A TREATISE ON THE RULES OF ORGANIZATION AND PROCEDURE 
IN DELIBERATIVE ASSEMBLIES; 

H. A GLOSSARY OP LAW TERMS IN COMMON USE. 



BY 

THEOPHILUS PARSONS, LL.D., 

EX-PROFESSOR OP LAW IN HARVARD COLLEGE; 

AUTHOR OF "THE LAWS OP BUSINESS," OP A TREATISE ON "THE LAW OP CONTRACTS,' 
AND OP OTHER LAW-BOOKS. 



NATIONAL PUBLISHING CO., 
CINCINNATI, MEMPHIS, ATLANTA 
JONES BROTHERS & COMPANY, 
PHILADELPHIA, ST. LOUIS 

1875. 



to 






4 



^A" 5 



Entered according to Act of Congress, in the year 1874, by 

THEOPHILUS PARSONS, 

In the Office of the Librarian of Congress, at Washington 



BY TRANSFER 



s-*4> 



£r 



CONTENTS. 



BOOK FIRST. 

OF THE POLITICAL EIGHTS OF A CITIZEN OF THE 
UNITED STATES. 



CHAPTER I. 

What a Constitution is 3 

Articles in addition to, and amendment of, the Constitution of 
the United States of America 34 



CHAPTER II. 

History of the Constitution of the United States . 
Sect. I. Events before the War of Independence . . . 
II. Events from the beginning of the War of Inde 
pendence to the formation of the Constitution 
III. The formation of the Constitution 



5 

5 

10 
16 



CHAPTER III. 

The Constitution of the United States 



25 



CHAPTER IV. 

Comments upon the Constitution of the United States . 38 

Sect. I. What our Constitution is 38 

n. The reconciliation of State rights and national 

sovereignty 44 

III. The distribution of power 47 

IV. The executive power ... 48 

The Vice-President 50 

V. The legislative power 51 

VI. Of the Senate 53 

Power as to their own members 55 

VJJ, The House of Representatives ...... 55 



iv CONTENT*. 



Chapter IV. — Continued, 

Sect. VIII. Privileges of senators and representatives . . 56 

Freedom from arrest . 56 

Not to be questioned elsewhere for speech in 

either House . ; . . 57 

IX. Power to regulate commerce ...... 57 

Commerce with foreign nations 57 

Power to regulate commerce among the States 58 

Railroads 59 

Can Congress regulate the freights on rail- 
roads 60 

Internal improvements ........ 63 

X. Taxes 64 

XI. On the judiciary 71 

XII. Of impeachment 76 

Who may be impeached 77 

For what offences an officer may be impeached 78 

XIII. The war power 78 

Articles of war • • 79 

Military Academy 80 

The Naval Academy 80 

Wars of this country 81 

The second war 81 

The third war 82 

The fourth war 82 

The fifth war 83 

XIV. Power to borrow money 83 

XV. Power to coin money ......... 85 

XVI. Of naturalization • 87 

Laws of naturalization 88 

Practice 90 

Forms annexed to this chapter . . . 90-94 

XVII. Admission of new States 94 

XVIII. A republican form of government guaranteed • 95 

XIX. Of amendments to the Constitution .... 96 

Amendments, How made • 97 

XX. Of the census.. • 98 

Tables 101-106 

CHAPTER V. 

The Constitutions of the Several States 107 

New Hampshire < •• 107 

Massachusetts • 108 



CONTENTS. 



Cha.pter V. — Continued. 

Rhode Island 110 

Connecticut Ill 

New York 112 

New Jersey 114 

Pennsylvania - . 115 

Delaware 117 

Maryland 118 

Virginia 120 

North Carolina . 122 

South Carolina 123 

Georgia ' 124 

Vermont 126 

Kentucky 128 

Tennessee 130 

Ohio 131 

The North-west Territory 131 

Louisiana 134 

Indiana 135 

Mississippi * 136 

Illinois 137 

Alabama 138 

Maine 139 

Missouri 141 

Arkansas 142 

Michigan 143 

Florida 144 

Texas 146 

Iowa 14 8 

California 148 

Wisconsin 150 

Minnesota 151 

Oregon 152 

Kansas 153 

West Virginia 154 

Nevada 155 

Nebraska 156 

New Mexico 156 

Utah 157 

Washington 15§ 

Colorado # 159 

Dakota I59 

Arizona 160 

Idaho 160 



V1 CONTENTS. 



Chapter V. — Continued. 

Montana • 161 

Wyoming 161 

Alaska 162 

Indian Territory • • . . 163 

District of Columbia 163 

Table 167 



BOOK SECOND. 

j. HE PERSONAL RIGHTS OF A CITIZEN OF THE 
UNITED STATES. 



CHAPTER I. 

The Writ of Habeas Corpus • • • . . 171 

Practice 174 

Form annexed to this chapter 175 

CHAPTER II. 

The Right to Personal Security 176 

Sect. I. Trial by jury 176 

II. No person shall be tried twice for the same of- 
fence 179 

HI. Excessive bail 180 

IV. Excessive fines 181 

Cruel and unusual punishment 181 

V. Bill of attainder 182 

VI. Ex post facto Ism 182 

VII. The right to assemble and petition government . 183 

VTII. Impairing the obligation of contracts . . . . 184 

CHAPTER HI. 

The Right to Freedom of Speech and of Writing . . 186 

Libel 186 

Slander 186 

Truth as a defence 187 



CONTENTS. vii 



CHAPTER IV. 

Freedom of Religious Faith and Pbopession • • • . 187 

CHAPTER V. 

Military Rights and Duties • • • • 188 

CHAPTER VL 

The Right and Duty op Suffrage • • . • 189 

The right of suffrage • 190 

CHAPTER VH. 

The Rights and Duties growing out of the Domestic 

Relations 201 

Sect. I. Parent and child 201 

Infants or minors 202 

Guardian and ward 205 

Apprentices 207 

Forms annexed to this section . . . 205, 208-210 

II. Husband and wife 210 

Alabama • • . . 212 

Arkansas 212 

California . 212 

Connecticut 214 

Delaware ••... 215 

Florida 215 

Georgia ' 215 

Illinois • • • . 216 

Indiana 217 

Iowa . 218 

Kansas 219 

Kentucky • . . 219 

Louisiana 220 

Maine 221 

Maryland 222 

Massachusetts 223 

Michigan 224 

Minnesota 225 

Mississippi 225 

Missouri ••• 226 

Nebraska 226 

Nevada 226 



Tiii CONTENTS. 



Chapter VII. — Continued. 

New Hampshire ...... 227 

New Jersey 227 

New York 228 

North Carolina ............ 229 

Ohio 229 

Oregon . . . 230 

Pennsylvania ...'.... 230 

Ehode Island 231 

South Carolina 231 

Tennessee 232 

Texas ; ... 232 

Vermont 233 

Virginia 233 

West Virginia 234 

Wisconsin 234 

Marriage . 235 

Divorce • • • • 245 

Forms annexed to this section 237-245 



BOOK THIRD. 

THE PROPERTY RIGHTS OF A CITIZEN OP THE 
UNITED STATES. 



CHAPTER L. 
Eminent Domain 251 

CHAPTER II. 
The Acquisition op Property 252 

CHAPTER ILL 
Jhe Distribution op the Property of an Intestate . . 253 
The distribution of personal estate 254 

CHAPTER IV. 

Op the Disposal of Property by Will . 255 

Sect I. Of wills 255 

II. Codicils 258 



CONTENTS. ix 



Chapter IV. — Continued. 

Sect. III. Revocation of wills • • • . . 258 

Forms annexed to this section 259-265 

IV. Executors and administrators 265 

Forms annexed to this section 268-273 

CHAPTER V. 

Deeds of Land 273 

Sect. I. What is esssential to deeds conveying land • . 273 

II. The usual clauses in deeds 278 

III. Mortgages of land 284 

Forms annexed to this chapter 289-354 

CHAPTER VI. 

Purchase and Sale op Goods and Chattels 355 

Sect. I. What constitutes a sale 355 

II. Delivery and its incidents 3$9 

III. Contracts void for illegality or fraud . . . . . 363 

IV. Sales with warranty 3\S5 

Forms annexed to this section 367-369 

V. The sale of one's business ......... 309 

VI. Stoppage in transitu 370 

CHAPTER VH. 

Mortgages of Goods and Chattels 372 

The pledge of personal property 373 

Forms annexed to this chapter ........ 374-378 

CHAPTER Vm. 

Letting and Hiring of Real Property 379 

Leases » . 379 

Fixtures 382 

Forms annexed to this chapter 383-411 

CHAPTER IX. 
Gifts 411 

CHAPTER X. 
Finding 413 



CONTENTS. 



CHAPTER XI. 

Consideration . 414 

Sect. I. The need of a consideration 414 

II. What is a sufficient consideration • . . . . . 415 

HI. An illegal consideration 417 

IV. An impossible consideration .417 

V Failure of consideration 418 

CHAPTER XII. 

Agreements 420 

Sect. I. The legal meaning of agreement • • . . • . 420 

Mistakes. 421 

Fraud 421 

II. What is an assent 422 

III. Offers made on time 422 

IV. A bargain by correspondence 423 

V. What evidence may be received in reference to a 

written contract 424 

VT. Custom or usage 426 

How contracts or agreements should be made . 428 
Forms annexed to this chapter .... 429-443 

CHAPTER XIII. 
Assignments 445 

Forms annexed to this chapter • . 445-448 

CHAPTER XIV. 
Bonds 449 

Forms annexed to this chapter 450-456 

CHAPTER XV. 

Guaranty 457 

Sect. J. Of the rights and duties of a guarantor 457 

Forms annexed to this chapter . . . . . . 460-462 

II. The Statute of Frauds 462 

A promise to pay the debt of another .... 463 

An agreement not to be performed within a year . 464 

The form and subject-matter of the agreement . 465 

CHAPTER XVI. 

Payment and Tender 466 

Sect. I. How payment may be made . .466 

H. Appropriation of payment 467 






CONTENTS. 



XI 



CHAPTER XVII. 

Receipts and Releases 468 

Forms annexed to this chapter 469-480 

CHAPTER XVJU. 

Notes op Hand and Bills op Exchange, Drafts, and 

Checks 481 

Sect. I. The purpose of, and the parties to, such papers . 481 

Forms annexed to this section 482 

II. What is essential to a negotiable note or bill . . 484 

Form annexed to this section 485 

III. The consideration of negotiable paper . . . . 491 

IV. The rights and duties of the maker 493 

V. The rights and duties of the holder of negotia- 
ble paper 494 

VI. The rights and duties of the indorser . . . . 504 

VII. The rights and duties of the acceptor .... 507 

VIII. Acceptance or payment for honor 508 

Forms annexed to this section 509-512 

CHAPTER XIX. 

Agency ...... 512 

Sect. I. Agency in general 512 

II. How authority may be given to an agent . . . 514 

III. Extent and duration of authority 516 

IV. The execution of authority 518 

V. Liability of an agent 519 

VI. Rights of action growing out of agency . . . 519 

VII. How a principal is affected by the acts of his agent 520 

VIII. Mutual rights and duties of principal and agent . 521 

IX. Factors and brokers 523 

Forms annexed to this chapter ..... 526-531 

CHAPTER XX. 

Partnership 532 

Sect. I. What a partnership is 532 

H. How a partnership may be formed 532 

in. How a partnership may be dissolved 534 

IV. The property of the partnership 536 

V. The authority of each partner, and the joint 

liability of the partnership 537 

VI. Remedies of partners • gainst each other . . . 540 



XU CONTENTS. 



Chapter XX. — Continued. 

Sect. VII. Rights of the firm against third parties . . . 542 

VIII. Rights of creditors in respect to funds .... 542 

IX. The effects of dissolution 544 

X. Limited partnership 545 

Forms annexed to this chapter ....*. 546-550 

CHAPTER XXI. 

Arbitration 551 

Sect. I. Of the submission and award . 551 

II. The revocation of a submission to arbitrators . . . 554 

Forms annexed to this chapter 556,557 

CHAPTER XXII. 

The Carriage op Goods and Passengers 558 

Sect. I. A private carrier 558 

H. The common carrier 559 

III. Bills of lading 561 

IV. The obligation of the common carrier to receive 

and carry goods or passengers 562 

V. The lien of the common carrier 566 

VI. The liability of the common carrier ..... 567 

VII. The carrier of passengers 568 

VHI. A notice by the carrier respecting his liability . 569 
IX. The carrier's liability for goods carried by pas- 
sengers 570 

Forms annexed to this chapter 573-575 

CHAPTER XXHI. 

Fire Insurance 576 

Sect. I. The usual subject and form of this insurance . . 576 

Usage 577 

H. The construction of policies against fire . . . 578 

Applications 580 

III. The interest of the insured 584 

IV. Double insurance 586 

V. Warranty and representation 587 

VI. The risk incurred by the insurers 589 

VII. Valuation 590 

VIII. Alienation . . . 591 

IX. Notice and proof . 592 

X. Adjustment and loss . . 593 

Forms annexed to this chapter • .594-596 



CONTENTS. xiii 



CHAPTER XXIV. 

Life Insurance 597 

Sect. I. The purpose and method of life insurance . . . 597 

II. The premium 598 

III. The restrictions and exceptions in life policies . . 599 

IV. The interest of the insured 600 

V. The assignment of a life policy 601 

VI. Warranty, representation, and concealment . . . 602 
VII. Insurance against accident, disease, and dishonesty 

of servants . 605 

CHAPTER XXV. 

Bankruptcy 605 

Voluntary bankruptcy. — Commencement of proceedings . . 606 

Assignments and assignees 608 

The distribution of the bankrupt's estate 613 

The bankrupt's discharge and its effect 615 

Preferences and fraudulent conveyances declared void . . . 618 

Involuntary bankruptcy 619 

Of superseding the bankrupt proceedings by arrangement . 621 

Composition with creditors 623 

CHAPTER XXVI. 

Limitations 625 

Sect. I. The Statute of Limitations ........ 625 

II. Construction of the statute 626 

III. The new promise . 627 

IV. Part-payment 628 

V. Some statutory exceptions 628 

VI. When the period of limitation begins 629 

Vn. The statute does not affect collateral security . . 630 

CHAPTER XXVII. 

Interest and Usury 630 

Sect. I. What interest is, and when it is due 630 

H. A charge for risk or for service 634 

III. The sale of notes 635 

IV. Compound interest 637 

Abstracts of the usury laws of the States . . . 637 



xiv CONTENTS. 

CHAPTER XXVni. 

The Law of Place 640 

Sect. I. What is meant by the law of place 640 

II. The general principles of the law of place . . . 641 

III. The place of the contract 642 

TV. Domicile 643 

CHAPTER XXIX. 
Trade-marks 645 

CHAPTER XXX. 

Means provided for the Recovery and Collection op 

Debts 648 

CHAPTER XXXI. 

The Liens of Mechanics and Material-men for their 

Wages and Materials 649 

Forms annexed to this chapter 651—653 



RULES FOR ORGANIZATION AND PROCEDURE IN DELIB- 
ERATIVE ASSEMBLIES. 



CHAPTER I. 
Origin and Purpose of the Rules of Order .... 657 

CHAPTER II. 
Organization 658 

CHAPTER IH. 
Quorum 659 

CHAPTER IV. 

How Questions are decided 659 

Of the officers 659 



CONTENTS. XV 

CHAPTER V. 
How Business mat be introduced 660 

CHAPTER VI. 
Of Motions •• 661 

CHAPTER VH. 

Resolutions and Orders 661 

Seconding • • • • . 661 

Withdrawing a motion • • • • . 662 

CHAPTER Vm. 
The Order op Motions 662 

CHAPTER IX. 
Motion to adjourn 662 

CHAPTER X. 
To lie on the Table . 663 

CHAPTER XI. 
The Previous Question 663 

chapter: XIL 

Postponement to a Day Certain ...«••••. 664 

CHAPTER XILL 
To commit 664 

CHAPTER XIV. 
Motion to amend • • . . 66$ 

CHAPTER XV. 

How Committees are appointed 667 

How the committee meet and act 668 

Minority reports 668 

CHAPTER XVL 
Committee op the Whole 668 



xvi CONTENTS. 

CHAPTER XVII. 
Privileged Questions 669 

CHAPTER XVIH. 
Orders of the Dat • 670 

CHAPTER XIX. 

How the Presiding Officer puts Questions 670 

How the vote may be ascertained •••671 

Taking the question by yeas and nays • • . 671 

CHAPTER XX. 

How a Motion is made . . 672 

Rules and usages of debate ...••••••••• 672 

CHAPTER XXI. 
Appeals from a Presiding Officer •••••••• 673 

CHAPTER XXH. 
Reconsideration . . . 673 

CHAPTER XXIH. 
Of a Bill 674 

CHAPTER XXIV. 
The Preservation of Order . . 675 



Glossary of Law Terms in Common Use ,. 677 

Index ...••••••••••••••••« 699 



BOOK FIRST. 

THE POLITICAL RIGHTS OF A CITIZEN OF THE 
UNITED STATES. 



NOTE. 

I have believed that a book exhibiting the provisions and the 
principles of our national constitution, with the history of its forma- 
tion, and the means by which republican institutions may be made 
most productive of good, and guarded from the dangers which most 
nearly threaten them, would be useful ; and I have attempted to 
do this in the First Book in this volume. 

The Second Book contains a view of the personal rights so 
secured to all our citizens by our constitutions and laws, that only 
our neglect or abuse of them can impair or imperil them. 

The Third Book states in simple and untechnical language the 
laws and rules, by an observance of which all the kinds of business 
in common use may be safely transacted. 

Then follows a Treatise on the Rules of Order in Deliberative 
Bodies. A knowledge of these rules is especially necessary in this 
country, where nearly all its public business, — from Congress down 
to our town meetings, — and much of its private business, — as in 
meetings of stockholders and the like, — are governed by these 
rules ; and all such meetings would avoid disorder, and accomplish 
their purposes far better, if these rules were generally known and 
regarded. 

The volume closes with a Glossary, or Dictionary, of Law Terms 
in common use. The language of the law, to a large extent, may 
be easily taught ; and as without it the rules under which we all 
live and act cannot be well understood, it would seem that it might 
be usefully learned. 

All that part of this volume which is taken from my former 
works has been carefully revised and amended. 

r Theophilus Parsons. 

Cambridge, 1874. 




BOOK FIRST. 

OF THE POLITICAL RIGHTS OF A CITIZEN 
OF THE UNITED STATES. 



CHAPTER I. 
WHAT A CONSTITUTION IS. 

The political rights of a citizen of the United States are denned, 
established, and protected by the Constitution of the United States, 
and the constitutions of the several States. Our first endeavor will 
be to ascertain what this word "constitution," when used in a political 
sense, means. 

A constitution is that supreme law, which the nation itself makes, 
as the condition and the limitation of all the powers it will there- 
after impart to its political servants. It is the guide which it gives 
to them all. It is the expression of the deliberate determination of 
the whole people, that the rights which it believes to lie at the foun- 
dation of all right, shall ever be preserved ; that certain principles, 
which are to be as the life and essence of all law, shall ever be 
maintained ; and it divides and defines, and yet connects together, 
all the organic powers and functions of the State. It governs all 
legislative bodies in the exercise of their functions, for it is the law 
of the law of the nation. And when the constitution is thus formed, 
it is thereafter the supreme law of every citizen of the State, be he 
high or low, be it his office to make, to execute, or to judge of law, 
or only to assist in laying these duties upon others. To every man, 
and to every man alike, it is a supreme law. 

The imperfect imitations of a constitution on the continent of 
Europe, and on this continent south of the Union, were never the 
expression or the creation of the deliberate reason and will of the 
people ; they never were what constitutions should be, and nearly 
all ol them have been torn into tatters. 



THE POLITICAL RIGHTS OF 



We often read of the British Constitution. But Great Britain 
has no constitution. Let us suppose that, at the next session of the 
British Parliament, a rigorous censorship of the press is established, 
the Queen authorized to lay what taxes she will, on whom she 
will, and collect them as she will, the Habeas Corpus Act repealed, 
and all the ministers supplied with blank warrants under the privy 
seal, as it once was in France, which they may fill with any name, 
and by these means imprison any persons at their pleasure. And 
let us suppose that these laws pass through Parliament with pre- 
cisely the same forms as those necessary for a statute to regulate 
the days of grace on bills of exchange, or to provide any oth< r 
common mercantile or municipal measure. It is certain that no 
man in England would have a legal right to resist any one of these 
laws; and no court or magistrate in England would have a legal 
right to obstruct, or defeat, or annul them, or do any other thing 
than carry them at once into full force and effect. Of course, if the 
popular sentiment were not greatly changed, there would be oppo- 
sition and effectual resistance somewhere. But it would be the 
opposition of rebellion or revolution, and not of legal right. But 
let any such law be passed by Congress and the President of the 
United States, or by the legislature and governor of any State, 
and it is only nothing. It is dead at its birth. The judicial body 
of the nation or the State is ready to declare it to be nothing. And 
the reason for all this is, that the law opposes the constitution, and, 
by the force of that fact, is nothing. If, in England, the word "con- 
stitution" may mean the whole complex of all their political and 
legal institutions, here it means something distinct from them all, 
something sovereign over them all, imparting life to all of them that 
live, and denying life and power to whatever opposes it. 

The government of these United States is this day the strongest 
government in the world, for it is the organ of a nation endowed 
with self-government, and is invested with the nation's might, to 
be used for the nation's good, in whatever fray may prove to be the 
best. It is the government of law, and its strength is in the Con- 
stitution. We are a nation that includes as wide a diversity of 
opinion, of sentiment, of character, and of interest, as of soil and 
climate. Bat over us all the Constitution bends like the universal 
sky, holding us all within its embrace, but lifted up too high for 
any one to reach it with a sacrilegious hand. Like the sky, it comes 
down as the beneficent air, which surrounds us at every step and at 
every moment; supplying us with the element of political life, and 
yet so soft, so yielding and invisible, that we do not think of it as 
we engage in the work or enjoy the happiness of every day. Soft, 
yielding, and invisible is this sweet air we breathe and live upon ; 



A CITIZEN OF THE UNITED STATES. 



and yet it may, when there is need, put forth its strength, — and 
who can stand against the might of the unfettered wind ! 

The strength of our constitutional government must reside in its 
gentleness, and in the opportunity which is given by its gentleness, 
for passion to calm down, and stubbornness to melt away, and the 
wanderer to return, and that which is right and best to become 
manifest to all men. It must reside in its patient forbearance while 
that is possible, and in its cautious mildness as far as that is possi- 
ble; in its power, derived from this very gentleness, of adaptedness 
to every exigency ; and, therefore, of adequacy to any exigency 
which may call upon it, either to bring into action its whole irresist- 
ible might, or to take any other course which a comprehensive and 
clear-sighted wisdom may approve. 

"Sot is our constitution a fetter imposed by the past upon the 
present and the future, fixed and crystallized into forms which may be 
broken but cannot change. The exact opposite of this is the truth. 
It is a living organism. It invites and provides for change. It de- 
sires all changes, in all time, which shall make it ever more able to 
perform its great functions. But it carefully provides that these 
changes shall come only as a common demand, shall be matured by 
a common deliberation, and rest on a common consent ; common, 
not universal, for that it is too wise to require or to expect. 



CHAPTER II. 

HISTOKY OF THE CONSTITUTION OF 
THE UNITED STATES. 

SECTION I. 
EVENTS BEFORE THE WAR OF INDEPENDENCE. 

We might trace back to the very beginning* of history, the series 
of events which led to the formation of our constitution. We can 
only glance at this series now. Let us begin with the inquiry, what 
the best government must be; and the answer should be, in one 
word, self-government. On this topic, as on so many others, we may 
be helped by remembering that as a nation is composed of men, it 
cannot contain any other elements of national character than those 
which are contributed by the men of the nation. And when we 
look at men individually, and from the study of human character 



THE POLITICAL RIGHTS OF 



reach certain definite laws and conclusions concerning human life 
in the individual, we may well hope that these laws and concisions 
will throw some light upon similar questions as they exist in refer- 
ence to a nation. 

The hest definition or description of a republican constitutional 
government may be found in the often-quoted words of President 
Lincoln. It is a government " of the people, by the people, for the 
people." But these words are often used with an ignorance or 
disregard of their exact and most important meaning; for they are 
used as if government " of" the people and government " by " the 
people meant the same thing. There can be no greater mistake. 
Government' of the people means that the people shall be governed ; 
as really and effectually governed as under any form of government. 
But never oppressively or tyrannically, because they are governed 
by themselves. They govern themselves, for and in their own best 
interests. And if they are not governed, if they do not govern 
themselves, those interests are disregarded and defeated. For what 
is the besf government for an individual ? If I put the question in 
another shape, — if I ask whether he is best governed who is surren- 
dered to his own fantasies and proclivities and lusts, and exasper- 
ates all these by utter unrestraint, and makes no reference to right 
or wrong, or the law of God or the law of man, the question answers 
itself. I am describing a man who has done all that he can do to 
become only a wild beast. Better were it for him that some arm 
of power should hold him, some fear restrain him, some irresistible 
command control him, and all thesS influences compel him to decent 
conduct. Then, it might at least be possible that his lusts and follies, 
because they were repressed, would be enfeebled. If so, it might 
again be possible that the severity of external control could be safely 
relaxed ; that some acknowledgment of law, some thought of right, 
would begin to exert a power within him, and thereby facilitate the 
entrance of yet better thoughts and higher motives, and that this 
advancing and ascending progress might go on, until a control from 
within accepted and welcomed a control from without as a necessary 
help. And the consummation of all this would come when the law 
of truth, of right, and of instructed conscience was all the law he 
needed, all the law he felt ; and this law put him at ease with the 
system of law prevailing all around him, and the man stood and 
lived in perfect peace with the law and perfect peace with himself. 

This is but an ideal picture ; far from the reality existing in the 
best of us. It is, however, a picture of that last result towarda 
which we are led by all moral improvement, all elevation of motive, 
all recognition of the authority of right, and all confirmation of our 
love of goodness. 



A CITIZEN- OF THE UNITED STATES. 



I cannot but think that the history of the past and the condition 
of the present lead to the conclusion that a law and method of 
progress, somewhat analogous at least, prevail in the growth of 
nations. History is but the biography of man; and the lessons 
which are taught by the life of mankind cannot be altogether remote 
and diverse from those we may gather from the lives of men. 

To see how the progress of mankind has accorded with these 
principles, we must go far back towards the beginning ; and it is of 
course impossible to give more than the most cursory glance at the 
evidence which the pages of history offer. But even this glance 
will show us that while government was known only as unmitigated 
despotism in the Eastern and ancient world, it received important 
modifications as it passed through Greece ; and that the despotism 
of the central power of the vast empire of Rome was accompanied 
with a singular amount of freedom and self-government in the 
cities and boroughs and lesser provinces into which the Roman 
empire was divided. In this way some preparation was made for 
the feudal system, which was, in theory, a government of laws and 
not of men, for it assigned his own place and his own rights to every 
man. And so the possibility of deliverance from a wholly external; 
control, from a power which was over him and against him, instead 
of one which was accepted by him as his own and as selfdmposed, 
grew from age to age. 

A few centuries ago, four great discoveries, or ratte the bring- 
ing within reach and use of four things known but neglected before, 
came near together and distinguished that period from any other 
in history. One of these was the mariner's compass £ and it guided 
Columbus to America. The discovery of this continent was another. 
Gunpowder, the third, made the subjection of this continent easy 
and rapid. And the press, which was the fourth discovery, diffused 
among expecting nations the tidings of this new world, and spread 
widely a knowledge of the advantages which it offered ; and this 
soon brought to our shores the beginning of a new population. 
This grew up under the fostering and needed care of the parent 
races, until the colony was strong enough to become a State. 

Something like this had often happened before. History is fall 
of stories of successful colonization, and of young nations which 
cast off dependence when they were strong enough to break their 
fetters. But something else happened now that never occurred 
before. In all previous instances where colonies grew into States, 
they became substantially what their parents were. "When the 
new shoot was rooted, it was the old tree again, with more or less 
unimportant change from soil or climate or position. Not so here. 
Our colonial fathers were at first subjects of a king, as all the h> 



8 THE POLITICAL RIGHTS Oe 

habitants of earth, with few and slight exceptions, under some form 
or name, were and always had been. But when our fathers ceased to 
be subjects of their king, they founded States without a king; and 
in this simple fact they indicated, and the wiser among them saw, 
the dawn of a new day in the life of mankind. 

This new world, thus and then discovered, was near enough to 
the old world to receive colonists with no more hinderance and 
difficulty than were useful to sift out the weak from the strong, 
that the seed of a new nation might have due vitality. Far enough 
from the old world to prevent an immediate and controlling influ- 
ence from stretching across the waters and causing the future to be 
but a repetition of the past; far enough to permit the germs of 
nations planted here to grow up into the great possibility which 
awaited them. And then the hour came, and the last word of God's 
providence in human government was uttered when he said to a 
great nation, " Go forth, be free, and govern yourselves." 

The great question for this country is, shall we be deaf to this 
word ? In the infinite future there may be and will be vast changes 
and infinite improvements. These will lessen, or remedy, or prevent 
many evils which we already discern, and many more which we do 
not yet discern, in our republican institutions; and whatever good has 
yet come, or may now be hoped for from these institutions, will be 
increased a thousand fold, as they are changed for the better. But 
the nations will never again regard as the only possible or desirable 
government, that of a power distinct from the people, and deriving 
no force and no life from their consent and voluntary recognition. 
The work we have begun will not be suppressed and extinguished. 
It will live, and it will grow into the fulness of its stature ; and that 
it may live and grow, the wants, the deficiencies, and the errors of 
any age will be disclosed by whatever lessons may be necessary to 
teach them, and will be remedied by whatever means are then 
found best for that purpose. For the period in the progress of 
mankind has been reached when a government was to be formed, 
which should possess, and in time of need be able to exert, the force 
of the nation for national purposes, and the combined power of its 
component parts for all those purposes which embrace the interests 
of all, and yet leave each of those parts, States, cities, families, and 
individuals, in the utmost possible freedom to enjoy the blessing 
and discharge the duty of self-government. When before, where 
else, has this ever been the design of government? 

The colonies, from their beginning, exercised a large amount — 
some more and some less — of self-government. They knew that 
this must be so, and in some cases provided for it. A noticeable 
instance of this occurred among the founders of the colony of Fly- 



A CITIZEN OF THE UNITED STATES. 9 

mouth in New England. The "Mayflower" dropped her anchor in 
the roadstead of what is now Provincetown, on Cape Cod, Nov. 11, 
/1GI20. A journal of their proceedings says : — 
/ " This day, before we came to harbor, observing some not well 
affected to unity and concord, but gave some appearance of faction, 
it was thought good there should be an association and agreement, 
that we should combine together in one body, and to submit to 
such government and governors as we should by common consent 
agree to make and choose, and set our hands to this that follows, 
word for word." The following instrument was prepared and 
signed : — 

" In the name of God, amen. We, whose names are underwritten, 
the loyal subjects of our dread sovereign lord, King James, by the 
grace of God, of Great Britain, France, and Ireland King, Defender 
of the Faith, &c, having undertaken, for the glory of God, and 
advancement of the Christian faith, and honor of our king ard 
country, a voyage to plant the first colony in the northern parts of 
Virginia, do by these presents, solemnly and mutually, in the pres- 
ence of God and one of another, covenant and combine ourselves 
together into a civil body politic, for our better ordering and pres- 
ervation, and furtherance of the ends aforesaid; and by virt'ie 
hereof to enact, constitute, and frame such just and equal laws, 
ordinances, acts, constitutions, and offices, from time to time, as 
shall be thought most meet and convenient for the general good of 
the colony ; unto which we promise all due submission and obei'ii- 
ence. In witness whereof we have hereunder subscribed our names, 
at Cape Cod, the 11th of November, in the year of the reign of our 
sovereign lord, King James, of England, France, and Ireland the 
eighteenth, and of Scotland the fifty-fourth, Anno Domini 1620." 

This may be called the first written constitution ; forced, as it 
were, upon our fathers, by the compulsion of circumstances. It 
contains the essential principles of all republican constitutions. In 
all the colonies, through all their history, there was some conflict, 
and in some of the colonies an almost constant conflict, between 
their efforts at self-government and the royal authority, which, in 
the hands of its agents and officials, sought to control them. They 
became little republics ; or it is more accurate to say that, by the 
experiences and the discipline they passed through for more than 
a century, they were trained to become republics. 



10 THE POLITICAL RIGHTS OF 



SECTION II. 

EVENTS FROM THE BEGINNING OF THE WAR OF INDEPEN- 
DENCE TO THE FORMATION OF THE CONSTITUTION. 

The colonies of North America were formed in rapid succession, 
and were scattered all along our seaboard. They were formed, to 
some extent, by different kinds of people, who came not all from 
one country nor moved by the same impulse, and they brought with 
them different characteristics. They were planted at distances 
which permitted them, independently, or, at least, Without much 
assimilating influence of one upon another, to grow up each in its 
own way, each under its own circumstances, and each to develop 
its own peculiarities. And yet they were near enough, and similar 
enough, to seek and to have much intercourse, and to render -to 
each other much assistance. As time passed on, they found it de- 
sirable, in some instances to unite and coalesce under a common 
government; and in others, to form alliances for mutual assistance 
and protection. And in this way some unity of feeling and of 
interest, and some tendency to community of action, grrw up. 
And these experiences undoubtedly facilitated, and perhaps I might 
say made possible, their united action in their efforts to obtain in- 
dependence. 

As the feeling that independence must be won, and would be 
worth all that it might cost, grew stronger and more general, it 
became evident to the far-sighted and the patriotic that there must 
be some concert of action. In June, 1765, James Otis, of Boston, 
advised the calling of an American congress. But this measure 
met with much opposition, and for a time it seemed as if there 
could be no union. Then South Carolina responded to Massachu- 
setts, and declared for union ! In New York, those who held 
similar views established a newspaper, called the " Constitutional 
Courant," which had much influence. It bore for its motto the 
words, first used by Franklin nearly ten years before, " Join or Die." 
Never was the guiding truth of a great emergency expressed more 
emphatically or in fewer words. Join or die. This was indeed the 
great truth of that day, of every day since then, and of the very 
hour in which we live. Other States acceded, and on the 7th of 
October, 1765, the first congress, consisting of delegates regularly 
appointed from six States, with others, representing three more, 
assembled at New York. The doings of this congress strengthened 
and diffused the desire for united action. As the necessity became 
greater and more apparent, at length what is called the Continental 



A C 111 ZEN OF THE UNITED STATES. H 

Congress assembled in Philadelphia on the 5th of September, 1774, 
and then on the 10th of May, 1775. Still, so great was the jenlousy 
of a central power, that nothing but the peril of impending war, 
and its pressure when it came, held even this congress of delegates 
together. But they did hold together; and it was this congress 
which, on the 15th of June, 1775, appointed Washington com- 
mander-in-chief of the continental army; and on the 4th day of 
July, 1776, declared our independence. 

In that declaration these two elements of the unity of the whole 
and the sovereignty of the parts were mingled. It begins, " When 
it becomes necessary for one people to dissolve the political bonds 
which have connected them with another," and at its close declares 
that the former colonies are "free and independent States." There 
they stood, free from all external dominion, and as independent of 
each other as of England. 

But in 1777, Washington, when, at Morristown in Hew Jersey, 
he found himself in the midst, if not of treason, of an indifference 
which was hardening into treason, by proclamation required all who 
had received protections from the British commander to surrender 
them and take an oath of allegiance to the United States ! United ; 
when and how were they united ? In Congress he was censured 
for this. In the legislature of New Jersey it was declared that the 
required oath encroached upon the prerogatives of the State, and 
that it was absurd to swear allegiance to the United States before 
even a confederacy was formed. But even then Washington was 
justified by the language of the Declaration of Independence : 
even then were these States united in the contemplation of the 
good and the wise, and most of all in the heart of him who was 
best among the good and wisest among the wise. 

The doings of the Continental Congress before the Declaration of 
Independence, and in making that declaration, were revolutionary. 
They acted from necessity ; and the general sense of this necessity 
prevented criticism of their measures or a refusal to obey them. 
But the Congress itself felt the need of a more orderly organization, 
which should approach a nationality, so far, at least, as to unite the 
States into a strong and efficient confederacy. 

On the same day in which a committee was appointed to prepare 
a declaration of independence, 11th of June, 1776, it was resolved 
to appoint another committee " to prepare and digest the form of a 
confederation to be entered into between these colonies. ;> This 
committee reported a draft of articles of confederation, which was 
debated for about a month, and then a new draft was reported by 
the Congress in committee of the whole. The matter then slept 
until April, 1777, when it was taken up and debated on sundry days 



12 THE POLITICAL RIGHTS OF 

for about seven months, and on the 15th of November was adopted./ 
These particulars are stated, t{iat it may be seen how slowly and 
with what difficulty the idea" of nationality "made its way among t^he 
people. At that time it had indeed scarcely an existence. The 
different colonies had always been jealous of each other. Their 
interests were distinct, and in some respects opposed. Only because 
no one colony, and no part of the colonies, could achieve their 
independence, and all desired their independence, could they be 
induced to combine together sufficiently to act with any concert 
in the war of the Revolution. The wisest and strongest men 
in the country — Washington and Franklin maybe mentioned — 
looked further. We cannot say that either of these men or any 
of their great compatriots anticipated the wonderful future which 
awaited their country, and which would have been impossible if that 
country had not become a nation. It is, however, certain that they 
did earnestly desire an actual and effectual confederation, which 
should confer upon the general government adequate powers. The 
nearest approach they could make to this, and that with great diffi- 
culty, was in forming the Articles of Confederation. It was no easy 
matter to carry these articles through the Congress, obvious as 
must have been the need of them to every member of that body. 
And after they had been adopted by Congress, there was great diffi- 
culty in obtaining the ratification of them by the colonies, which 
by the declaration of independence had become States. At length, 
however, in the last half of 1778, about one year from the adoption 
of this instrument by the Congress, it was ratified by all the States 
but two ; and these, Delaware in 1779, and Maryland in 1781, finally 
ratified it. It was then publicly declared by Congress, with rejoic- 
ings which proved, on the one hand, with how much difficulty it had 
been obtained, and on the other, how much was hoped from it, and 
how great a good it was thought to be. 

The main cause of this difficulty was in the absence of all wil- 
lingness among the people of the different States to give up so 
much of the independence and sovereignty ■ of each State as was 
necessary, that all together might constitute a nation. There were, 
however, other causes. One of these was a great difference of opinion 
as to the basis of voting in the Congress. Some wished this to be 
by States, the smaller having equal power with the larger. Others 
would have political power proportioned to wealth ; and still others 
to population. There was also much conflict, both of opinion and 
of interest, as to the ownership of the vacant lands in the vast and 
then unexplored western territory. The charters of the colonies 
were exceedingly indefinite as to their western boundaries, some of 
them running to " The South Sea," as the Pacific Ocean was then 



a CITIZEN OF THE UNITED STATES. 13 

called. The larger States claimed that all the land within their 
chartered boundaries should belong to them. The smaller States 
insisted that the western regions, so far as they were unoecupied, 
should belong as a common property to the whole country. After 
much exciting controversy, which more than once threatened the 
existence of the confederacy, this question was settled by a con- 
cession to the confederacy, by the larger States, of a great part of 
the unsettled territory claimed by them. 

These obstacles not only obstructed and delayed the formation of 
A confederacy, until they were overcome by the absolute necessity 
of union and co-operation in resisting the efforts of Great Britain to 
preserve her sovereignty, but they made the Articles of Confedera- 
tion a most imperfect instrument. While the war lasted, it sufficed 
tolerably well for its purpose; and one reason for this was that 
Congress took whatever measures seemed necessary, without any 
careful observance of the limits imposed by the articles ; and the 
people seeing the necessity made no opposition. But when peace 
came, it may be said that the Articles of Confederation broke 
down. The reason was, that the general jealousy of a central 
government had withheld from it powers absolutely necessary to its 
existence. It had, indeed, no power of self-protection, no power of 
compulsion, no power of carrying into effect its own resolves. They 
could raise no money, and no army. They could appoint ambassa- 
dors, but could pay them nothing. They could conclude treaties, 
but only advise the execution of them. It was but the semblance 
of a government, with little of its substance. 

For all this, the Articles of Confederation must be regarded as 
the nearest approach to a national government that the temper of 
the people at that time made possible. They were a step in that 
direction, and an important step ; but it was only one step towards 
that result. 

The Articles of Confederation did not even purport to make of us 
a nation. If they are studied, they will prove the earnest desire 
of some at least of those who drew them, that we might become a 
nation. But they stopped so far short of this as to form of the 
States only a confederacy. These articles were skilfully drawn, and 
gave to the central government all the power which the States 
could then be induced to part with. Some semblance — something 
indeed of the substance of national power — was given; although 
there was no regular legislative, executive, or judicial department. 
Probably all the power was given to Congress that it was thought 
necessary that it should possess to do the work that lay before it. 
This work it did, well and thoroughly ; for while the thirteen States 
were held together by the presence of a common enemy, a common 



14 THE POLITICAL RIGHTS OF 

war, and a common necessity, the Articles of Confederation sufficed 
to make that war triumphant; but they sufficed for this, because 
the sagacity and singleness of purpose of the men who wielded the 
powers of government, the patriotism of the people, and the wisdom 
and constancy of Washington, supplied — so far at least as was 
needed for success — all deficiencies. 

Then came peace, and it was soon apparent that the want of 
unity in the nation, and of power in the government and its organs, 
not only prevented the deep wounds of the war from healing, but 
seemed even to aggravate all the mischiefs which followed, and 
made the first years of peace no years of returning prosperity. The 
central government, no longer sustained and invigorated by the war, 
found itself utterly unable to prevent or to avenge insults and out- 
rages to our flag: it could not even repel the incursion of the sav- 
ages on our borders ; it could not pay the interest of our national 
debt; it had no credit, no force, no vital energy, and it may well 
be said to have died of inherent weakness ; for in 1787 it abrogated 
its own functions, declared its inability to act as the government of 
a nation, and it appealed to the ultimate source of all political 
power, — the people of the whole country. And then came the 
convention of 1787. When it met, there was in that assembly 
as much of sagacity, of varied intellectual accomplishment and 
resource, and of earnest devotion to duty, as ever co-operated in a 
great work. And with all these mingled as little of folly and 
weakness, as little personal ambition, as little self-seeking of any 
kind, and as little of the disturbing force which these ignoble quali- 
ties would exert, as was possible under the conditions of humanity. 

If, in saying that the old Articles of Confederation carried this 
country successfully through the war of independence, I give them 
high praise, I believe that I give them still higher when I say that 
they made the national Constitution possible. These articles famil- 
iarized the minds of the whole country with the idea of united ac- 
tion and a central government. They proved indisputably the 
immense advantages which might be obtained thereby ; and they 
proved as certainly that to secure all these advantages it was abso- 
lutely necessary that the nation should have a greater unity than 
they gave to it, and the central government more power. Aided 
and illustrated by the course of events, they produced a general 
impression, especially among leading minds, everywhere, that there 
might be a stricter national unity, and a stronger central govern- 
ment, without absorbing or imperilling those State rights which 
were deservedly dear to the people of every State. Thus it was 
that this jealous love for the sovereign rights of the several States 
yielded slowly, reluctantly, and only step by step, to the inevitable 



A CITIZEN OF THE UNITED STATES. 15 

necessity for closer union. This jealousy was, at the beginning, 
paramount and extreme. It was not suppressed and overcome, 
but moderated until it stood in just equilibrium with the prevail- 
ing sense of the need and the good of a national existence and a 
national government. Then these two sentiments, or principles, 
met and co-operated ; and the result was, the Constitution of the 
United States, formed in the manner to be stated in the next sec- 
tion. And this, I again declare, I regard not merely as the best 
which could then have been made, but as in itself good, and very 
good, and the best for the good of the whole nation which could 
have been made, by any men, under any circumstances. 

I do not consider that this constitution came into being- in itself 
perfect, and in itself able to go forward for ever, the instrument of 
a great nation's growth, prosperity, and happiness, with no more 
help, with no new influences to bear upon it and give to it added 
life and energy and efficiency. I mean no such thing. It needed 
more, a vast deal more, before it could become — what I think it is 
to be — a permanent instrument of the greatest, the highest, and 
the completest political good. 

The problem to be solved in the establishment of this govern- 
ment, or, as it may be better said, in the formation of this nation, 
was to create the best possible form of a republican government by 
the perfect reconciliation of the two elements of central power and 
reserved rights. 

In other words of the same meaning, the problem was to create 
a system of government which should arm the central power with 
all the force which it could usefully exert, and yet leave to all whom* 
it gathered within its wide embrace, the utmost possible freedom for 
self-government, and the strongest assurance that this freedom 
should be guarded but not weakened, protected and not impaired. 

This was done by the Constitution, as far as written words could 
do it. For after all our experience, at this day no words could mend 
that constitution in this respect ; none could make this balance of 
forces more perfect. But another thing could be done, and remained 
to be done. It was to fix the meaning of this constitution by prac- 
tical construction. To fasten on the public mind the conviction, and 
fill with it the public heart, that our constitution meant, on the one 
hand, a preservation of State rights, and on the other, indissoluble 
national unity ; and to root this conviction into the public life firmly, 
so that no storm could shake it, and so that no devastating force could 
rend it away. It may not be possible to prevent these two elements 
from sometimes, during the ages that will come, rising separately 
into undue prominence. At one time, or by one body or class, the 
national unity may be urged until it threatens consolidation, and 



16 THE POLITICAL RIGHTS OF 

at another time the principle of State rights may again assert itself 
too strongly. But it may be hoped that their reconciliation is here- 
after to be so established, not by the written constitution only, but 
by the constitution of the public sentiment and the public will, that 
it will stand, even as our continent stands upon its rocky base, no 
more to be moved from its foundation than our continent is moved 
by the two great oceans which beat upon its shores. 



SECTION III. 
THE FORMATION OF THE CONSTITUTION. 

As the insufficiency of the Articles of Confederation became ap- 
parent, and the need of concerted action was felt, efforts were made 
in that direction. Thus, in 1785, Virginia and Maryland appointed 
commissioners to form some agreement concerning the navigation 
of the rivers Potomac and Pocomoke, and the Chesapeake Bay. 
These commissioners met at Alexandria, and found they could do lit- 
tle good unless some provision could be made for a general tariff of 
duties upon imports, and they reported the need of this to the legis- 
lature of Virginia. Whereupon that State, on the 21st of January, 

1786, appointed commissioners, u who were to meet such as might 
be appointed by the other States in the Union, at a time and place 
to be agreed on, to take into consideration the trade of the United 
States; to examine the relative situation and trade of the said 
States ; to consider how far a uniform system in their commercial 
relations may be necessary to their common interest and their per- 
manent harmony; and to report to the several States such an act 
relative to this great object as, when unanimously ratified by them, 
will enable the United States in Congress assembled effectually to 
provide for the same." 

The appointment of commissioners for this purpose was notified 
to the other States; but only four others, New York, New Jer- 
sey, Delaware, and Pennsylvania, responded by the appointment 
of commissioners. In September, 1786, commissioners from these 
five States met at Annapolis. All that they did, however, was to 
lay before Congress and the several States a report, in which they 
recommend that all the States should appoint commissioners, to 
meet in convention at Philadelphia, on the second Monday of May, 

1787, "to take into consideration the situation of the United States ; 
to devise such further provisions as shall appear to them necessary to 
render the constitution of the federal government adequate to the 
exigencies of the Union ; and to report such an act for that purpose 
to the United States in Congress assembled, as when agreed to by 



A CITIZEN OF THE UNITED STATES. 17 

them, and afterwards confirmed by the legislature of every State, 
will effectually provide for the same." 

The reasons assigned for bringing the subject before a conven- 
tion especially chosen for that purpose, rather than leaving it to 
Congress, were, "that in the latter body it might be too much 
interrupted by the ordinary business before them, and would, be- 
sides, be deprived of the valuable counsels of sundry individuals 
who were disqualified by the constitution or laws of particular 
States, or restrained by peculiar circumstances from a seat in that 
assembly." 

Little do the people of this country know, difficult will it be for 
them to believe, the condition of public affairs and public opinion at 
that time. But all of us ought to know it, for it may help us to 
value more that constitution, which, under Divine Providence, was 
the instrument by which safety from these perils was at last attained. 
That we may better understand what these perils were, let me give 
extracts from some of the letters written at that time by some of 
our ablest and wisest men. John Jay writes to Washington, on 
the 16th March, 1786: "Experience has pointed out errors in our 
national government which call for correction, and which threaten 
to blast the fruit we expected from our tree of liberty. The con- 
vention proposed by Virginia may do some good, and would perhaps 
do more, if it comprehended more objects. An opinion begins to 
prevail that a general convention for revising the Articles of Con- 
federation would be expedient. Whether the people are yet ripe 
for such a measure, or whether the system proposed to be attained 
by it is only to be expected from calamity and commotion, is diffi- 
cult to ascertain. I think we are in a delicate situation, and a vari- 
ety of considerations and circumstances give me uneasiness. It is in 
contemplation to take measures for forming a general convention. 
The plan is not matured. If it should be well considered, and take 
effect, I am fervent in my wishes that it may comport with the line 
of life you have marked out for yourself, — to favor your country 
with your councils on such an important and single occasion. I 
suggest this merely as a hint for consideration." 

On the 27th of June he writes : " Our affairs seem to lead to 
some crisis, some revolution, — something that I cannot foresee or 
conjecture. I am uneasy and apprehensive, more so than during the 
war. Then, we had a fixed object, and though the means and time 
of obtaining it were often problematical, yet I did firmly believe 
that we should ultimately succeed, because I did firmly believe that 
justice was with us. The case is now altered, — we are going and 
doing wrong, and therefore I look forward to evils and calamities, 
but without being able to guess at the instrument, nature, or meas- 

• 2 



18 THE POLITICAL RIGHTS OF 

ure of them. That we shall again recover, and things again go well, 
I have no doubt. Such a variety of circumstances would not, almost 
miraculously, have combined to liberate and make us a nation, for 
transient and unimportant purposes. I therefore believe we are yet 
to become a great and respectable people, — but when, or how, only 
the spirit of prophecy can discern. 

" What I most fear is, that the better kind of people (by which I 
mean the people who are orderly and industrious, who are content 
with their situations, and not uneasy in their circumstances) will be 
led by the insecurity of property, the loss of confidence in their 
rulers, and the want of public faith and rectitude, to consider the 
charms of liberty as imaginary and delusive. A state of uncertainty 
and fluctuation must disgust and alarm such men, and prepare their 
minds for almost any change that may promise them quiet and 
security." 

To this letter Washington replies as follows : " Your sentiments, 
that our affairs are drawing rapidly to a crisis, accord with my own. 
What the event will be is also beyond the reach of my foresight. 
We have errors to correct; we have probably had too good an 
opinion of human nature in forming our confederation. Experience 
has taught us that men will not adopt and carry into execution 
measures the best calculated for their own good, without the inter- 
vention of coercive power. I do not conceive we can exist long as 
a nation, without lodging somewhere a power which will pervade 
the whole Union in as energetic a manner as the authority of the 
State governments extends over the several States. To be fearful 
of investing Congress, constitute^ as that body is, with ample 
authorities for national purposes, appears to me the very climax of 
popular absurdity and madness. Could Congress exert them for 
the detriment of the people, without injuring themselves in an 
equal or greater proportion? Are not their interests inseparably 
connected with those of their constituents ? By the rotation of 
appointment, must they not mingle frequently with the mass of 
citizens ? Is it not rather to be apprehended, if they were possessed 
of the powers before described, that the individual members would 
be induced to use them, on many occasions, very timidly and ineffi- 
caciously, for fear of losing their popularity and future election ? 
we must take human nature as we find it : perfection falls not to 
the share of mortals. Many are of opinion that Congress have too 
frequently made use of the suppliant humble tone of requisition in 
applications to the States, when they had a right to assert their 
imperial dignity, and command obedience. Be that as it may, 
requisitions are a perfect nullity, where thirteen sovereign, indepen 
dent, disunited States are in the habit of discussing, and refusing 



A CITIZEN OF THE UNITED STATES. I? 

or complying with them at their option. Requisitions are actually 
little better than a jest and a byword throughout the land. If 
you tell the legislatures they have violated the treaty of peace, and 
invaded the prerogatives of the confederacy, they will laugh in 
your face. What then is to be done? Things cannot go on in 
the same train for ever. It is much to be feared, as you observe, 
that the better kind of people, being disgusted with these circum- 
stances, will have their minds prepared for any revolution whatever. 
We are apt to run from one extreme into another. To anticipate 
and prevent disastrous contingencies would be the part of wisdom 
and patriotism. 

"What astonishing changes a few years are capable of pro- 
ducing! I am told that even respectable characters speak of a 
monarchical form of government without horror. From thinking 
proceeds speaking, thence to acting is often but a single step. But 
how irrevocable and tremendous ! What a triumph for our enemies 
to verify their predictions ! What a triumph for the advocates of 
despotism to find that we are incapable of governing ourselves, and 
that systems founded on the basis of equal liberty are merely ideal 
and fallacious ! Would to God that wise measures may be taken in 
time to avert the consequences we have but too much reason to 
apprehend." 

Congress did nothing about the matter. The best men there 
were deeply impressed with the necessity of taking some measures 
which might prevent the threatened disintegration of the country ; 
but they were aware of the unpopularity of Congress, and appre- 
hended that their manifesting any desire for the convention would 
tend rather to defeat than promote it. It must be difficult for us, 
enjoying as we do all the benefits of union, to understand the very 
general opposition to it. I will presently endeavor to exhibit the 
state of the country, by extracts from the letters most likely to 
understand it thoroughly. Some of these letters refer to the dis- 
contents which prevailed throughout New England, and broke out 
into insurrection in Massachusetts, and with less violence in New 
Hampshire. The enormous exertions of those States during the 
war had accumulated a great debt. Their fisheries, which were 
then their principal reliance, had been neglected and had become 
unproductive. The taxes were very burdensome. General Lincoln 
was sent with a body of troops into the west of Massachusetts, in 
the depths of winter, and pressed upon the rebels, until, after a few 
had been killed and more made prisoners, the rebellion there was 
subdued. In other places where courts were to be held, mobs suc- 
ceeded in preventing the judges from holding court, that judgments 
and executions might not issue against debtors. In Taunton, General 



20 THE POLITICAL RIGHTS OF 

Cobb, who had been in Washington's military family during the war, 
was major-general of militia, and at the same time a judge of the 
Court of Common Pleas. On the day when the court was to sit, he 
came upon the open green in front of the court-house, at the head 
of three hundred men in military array, and confronted a far more 
numerous mob. They sent to him, demanding that he should desist 
from opening the court. His only answer was : " I shall this day 
sit in that court as a judge, or die on this horse as a general." The 
mob knew their man, and dispersed. 

But extracts from letters written at that time, by men who were 
most likely to understand the condition and temper of the public 
mind, will present that more accurately than any words of mine. 

On the 20th of January, 1787, Colonel Humphries writes thus to 
Washington, accounting for the omission by those in favor of a 
federal union to press the appointment of deputies from Connecti- 
cut : " The reason was, a conviction that the persons who could be 
elected were some of the most anti-federal men in the State, who 
believed, or acted as if they believed, that the powers of Congress 
were already too unlimited, and who would wish, apparently, to see 
the Union dissolved. These demagogues," continued the letter, 
"really affect to persuade the people (to use their own phraseology) 
that they are only in danger of having their liberties stolen away 
by an artful, designing aristocracy. But should the convention be 
formed under the most favorable auspices, and should the members 
be unanimous in recommending, in the most forcible, the most glow- 
ing and the most pathetic terms which language can afford, that it 
is indispensable to the salvation of the country Congress should be 
clothed with more ample powers, the States would not all comply 
with the recommendation. They have a mortal reluctance to di- 
vest themselves of the smallest attribute of independent separate 
sovereignties." 

In a letter to Colonel Humphries, Washington says : " For God's 
sake, tell me what is the cause of all these commotions. Do they 
proceed from licentiousness, British influence disseminated by the 
Tories, or real grievances which admit of redress? If the latter, 
why was redress delayed until the public mind had become so much 
agitated? If the former, why are not the powers of government 
tried at once ? It is as well to be without, as not to exercise them. 
Commotions of this sort, like snow-balls, gather strength as they 
roll, if there is no opposition in the way to divide and crumble 
them." 

And in a letter to General Knox he says : " I feel infinitely more 
than I can express to you, for the disorders which have arisen in 
these States. Good God! Who besides a Tory could have foreseen, 



A CITIZEN OF THE UNITED STATES. 21 

or a Briton have predicted them? I do assure you that even at 
this moment, when I reflect upon the present aspect of our affairs, 
it seems to me like the visions of a dream. My mind can scarcely 
realize it as a thing in actual existence, — so strange, so wonderful 
does it appear to me. In this, as in most other matters, we are too 
slow. When this spirit first dawned, it might probably have been 
easily checked ; but it is scarcely within the reach of human ken, 
at this moment, to say when, where, or how it will terminate. 
There are combustibles in every State, to which a spark might set 
fire. In bewailing, which I have often done with the keenest sor- 
row, the death of our much lamented friend, General Greene, I have 
accompanied my regrets of late with a query, whether he would not 
have preferred such an exit to the scenes which it is more than 
probable many of his compatriots may live to bemoan." 

At length the legislature of New York, by an order which passed 
the senate by a majority of but one vote, instructed the delegates 
from that State to move in Congress a resolution recommending to 
the several States to send deputies to meet in a convention for the 
purpose of revising and proposing amendments to the federal con- 
stitution. 

On the 21st of February, 1787, the Congress resolved that it was 
expedient " that, on the second Monday in May next, a convention 
of delegates, who shall have been appointed by the several States, 
be held at Philadelphia, for the sole and express purposo of revising 
the Articles of Confederation, and reporting to Congress and the 
several legislatures such alterations and provisions therein as shall, 
when agreed to in Congress and confirmed by the States, render 
the federal constitution adequate to the exigencies of government 
and the preservation of the Union." 

Twelve States sent delegates to Philadelphia at the time ap- 
pointed, Rhode Island alone refusing to appoint any. The conven- 
tion met, unanimously chose Washington as their president, and 
proceeded, with closed doors, to discuss the subjects before them. 

The deliberations of the convention were protracted. All the 
difficulties in the way of union, all the objections on the part of the 
States to give up any part of their independent sovereignty, came 
up, and were discussed over and over, sometimes with considerable 
asperity of feeling and of language, but on the whole temperately 
and wisely. Mutual concessions were made. The absolute neces- 
sity of union became more and more apparent, as the diversities of 
opinion and feeling and interest were manifested. Compromises 
were assented to ; and at length, on the 17th of September, about 
four months after the convention met, a constitution was agreed 
to, which was substantially the same as it now is. 



22 THE POLITICAL RIGHTS OF 

By a resolution passed on the same day, the convention directed 
that the constitution should be laid before Congress, and recom- 
mended that it should be submitted in each State to a convention 
of delegates, for their assent and ratification ; and that as soon as 
nine States should ratify it, it should go into operation. 

This constitution was transmitted to Congress, accompanied by 
the following letter from the president of the convention. An 
admirable letter it is, stating very briefly, and yet clearly, the prin- 
ciples which governed the convention in framing the instrument, 
and should forever govern the people in their view of it : — 

" We have now the honor to submit to the consideration of the 
United States, in Congress assembled, that constitution which has 
appeared to us the most advisable. 

" The friends of our country have long seen and desired that 
the power of making war, peace, and treaties ; that of levying money 
and regulating commerce, and the correspondent executive and 
judicial authorities, — shall be fully and effectually vested in the 
general government of the Union. But the impropriety of dele- 
gating such extensive trust to one body of men is evident. Thence 
results the necessity of a different organization. It is obviously 
impracticable, in the federal government of these States, to secure 
all the rights of independent sovereignty to each, and yet provide 
for the interest and safety of all. Individuals entering into society 
must give up a share of liberty, to preserve the rest. The magni- 
tude of the sacrifice must depend as well on situation and circum- 
stances, as on the object to be obtained. It is at all times difficult 
to draw with precision the line between those rights which must be 
surrendered, and those which may be reserved. And on the present 
occasion this difficulty was increased by a difference among the 
several States, as to their situation, extent, habits, and particular 
interests. 

"In all our deliberations on this subject we have kept steadily in 
our view that which appeared to us the greatest interest of every true 
American, — the consolidation of our Union, in which is involved our 
prosperity, felicity, safety, perhaps our national existence. This 
important consideration, seriously and deeply impressed on our 
minds, led each in the convention to be less rigid in points of infe- 
rior magnitude than might have been otherwise expected. And 
thus the constitution which we now present is the result of a spirit 
of amity, and of that mutual deference and concession which the 
peculiarity of our political situation rendered indispensable. 

"That it will meet the full and entire approbation of every 
State, is not, perhaps, to be expected. But each will doubtless 
consider that, had her interest alone been consulted, the conse- 



A CITIZEN OF THE UNITED STATES. 23 

quences might have been particularly disagreeable and injurious to 
others. That it is liable to as few exceptions as could reasonably 
have been expected, we hope and believe ; that it may promote the 
lasting welfare of that country so dear to us all, and secure her 
freedom and happiness, is our most ardent wish." 

The constitution came before State conventions in 1787 and 1788. 
The conventions of Georgia, New Jersey, and Delaware adopted it 
at once, unanimously. Those of Connecticut, Maryland, Pennsyl- 
vania, and South Carolina adopted it by large majorities. Here 
were seven States, a bare majority of the thirteen, and two less than 
the number requisite to put the constitution into operation ; and it 
was thought very doubtful whether other States would ratify it. 

Rhode Island would not call a convention. That of Massachu- 
setts met in January, 1788, and it was understood that a majority 
of the members were disposed to reject it. The most strenuous 
efforts were made by those who were in its favor, and were at last 
so far successful, that on the 6th of February a vote in its favor 
was carried by a small majority; and at the same time some im- 
portant amendments were recommended. A convention met in 
New Hampshire soon after, and here, too, it was understood that a 
majority was opposed to the constitution ; but here also it was over- 
come, and the constitution adopted by a very small majority, and 
with a recommendation of amendments. 

The convention of Virginia met on the second of June. Here, 
also, the ablest and most influential men of the State were divided 
in opinion, the celebrated Patrick Henry leading the opposition. 
But on the 26th of June the constitution was adopted. 

The convention of New York met on the 17th of June. A de- 
cided majority of the convention were opposed to the constitution. 
Ten States, however, had adopted it, and it would certainly go into 
operation. This fact had great weight, and on the 26th of July 
the constitution was adopted, but with the recommendation of 
numerous amendments. The convention of North Carolina was in 
session at the same time as that of New York, and at first refused 
their assent until a declaration of rights, with other amendments, 
were first laid before Congress or a convention of the States. But 
on the 21st of November, 1789, that State ratified the constitution. 
And on the 29th of May, 1790, the State of Rhode Island ratified 
the constitution; and it then embraced all the original thirteen 
States. 

On the 13th of September, 1788, Congress resolved "that the 
first Wednesday in January following be the day for appointing 
electors in the several States which before the said day shall have 
ratified the said constitution ; that the first Wednesday in February 



24 THE POLITICAL RIGHTS OF 

be the day for the electors to assemble in their respective State*, 
and vote for a president ; and that the first Wednesday in March 
next be the time, and the present seat of Congress (New York) 
the place, for commencing the proceedings under the said consti- 
tution." 

The electors did so meet and vote ; and the States which had 
ratified the constitution chose their senators and representatives. 
They were eleven in number, Rhode Island and North Carolina 
not having ratified the constitution until a later period, as above 
stated. Then the first Congress met, and the Constitution of the 
United States went into operation, on the 4th day of March, 1789. 

Here we close our chapter on the History of the Constitution of 
the United States. I have given, with as much brevity as seemed 
to be consistent with distinctness, an account of the circumstances 
attending the formation of the constitution; the successive steps 
taken ; and the difficulties encountered and overcome. Especially 
have I endeavored to show how perfectly indispensable it w.:s for 
the preservation not merely of our national honor and prosperity, 
but of our national existence. And not only of our national pros- 
perity, but of the prosperity, order, and freedom of the integral 
parts of which our nation consists, and of the individuals who com- 
pose it. 

All these things the people of this country ought to know and to 
remember. This knowledge should help the people to value this con- 
stitution aright; to learn, from the many and great difficulties which 
attended its creation, the perils which will always demand a watchful 
care and a constant defence of it : for the same or similar erroneous 
opinions, and the same diversities of feeling and of interest, which 
caused those difficulties, are operative now, and will perhaps always 
be operative. The lessons of the past were painful and distressing 
to those to whom they were first given. They are given to us, also, 
as well as to them. And in our own generation, other lessons, 
written in letters of blood, have been given to us, for us and our 
children. Would that we might hope that the mercy of God will 
permit these lessons to teach us and all coming generations that 
local or personal prejudices, opinions, feelings, or interests, become 
our worst enemies, when they threaten to impair the excellence, to 
paralyze the energies, or imperil the permanence of that constitu- 
tion, which, obtained with so much difficulty, has already wrought 
so much good, and promises to secure it for us and our posterity. 



A CITIZEN OF THE UNITED STATES. 25 



CHAPTER III. 

THE CONSTITUTION OF THE UNITED 

STATES. 

We tie People of the United States, in order to form a more perfect 
Union, establish Justice, insure domestic Tranquillity, provide for the 
common defence, promote the general Welfare, and secure the Blessings 
of Liberty to ourselves and our Posterity, do ordain and establish this 
Constitution for the United States of America. 

ARTICLE. I. 

Section. 1. All legislative Powers herein granted shall be vested in a 
Congress of the United States, which shall consist of a Senate and House 
of Representatives. 

Section. 2. The House of Representatives shall be composed of Mem- 
bers chosen every second Year by the People of the several States, and 
the Electors in each State shall have the Qualifications requisite for Elec- 
tors of the most numerous Branch of the State Legislature. 

No Person shall be a Representative who shall not have attained to the 
Age of twenty -five Years, and been seven Years a Citizen of the United 
States, and who shall not, when elected, be an Inhabitant of that State in 
which he shall be chosen. 

Representatives and direct Taxes shall be apportioned among the several 
States which may be included within this Union, according to their re- 
spective Numbers, which shall be determined by adding to the whole 
Number of free Persons, including those bound to Service for a Term of 
Years, and excluding Indians not taxed, three-fifths of all other Persons. 
The actual Enumeration shall be made within three Years after the first 
Meeting of the Congress of the United States, and within every subse- 
quent Term of ten Years, in such Manner as they shall by Law direct. 
The Number of Representatives shall not exceed one for every thirty 
Thousand, but each State shall have at Least one Representative ; and 
until such enumeration shall be made, the State of New Hampshire shall 
be entitled to chuse three, Massachusetts eight, Rhode-Island and Provi- 
dence Plantations one, Connecticut five, New- York six, New Jersey four, 
Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North 
Carolina five, South Carolina five, and Georgia three. 

When vacancies happen in the Representation from any State, the 
Executive Authority thereof shall issue Writs of Election to fill such 
Vacancies. 

The House ' of Representatives shall chuse their Speaker and other 
Officers ; and shall have the sole Power of impeachment. 

Section. 3. The Senate of the United States shall be composed of two 



26 THE POLITICAL RIGHTS OF 

Senators from each State, chosen by the Legislature thereof, for six Years ; 
and each Senator shall have one Vote. 

Immediately after they shall be assembled in Consequence of the first 
Election, they shall be divided as equally as may be into three Classes. 
The Seats of the Senators of the first Class shall be vacated at the Expi- 
ration of the second Year, of the second Class at the Expiration of the 
fourth Year, and of the third Class at the Expiration of the sixth Year, 
so that one-third may be chosen every second Year ; and if Vacancies 
happen by Resignation, or otherwise, during the Recess of the Legislature 
of any State, the Executive thereof may make temporary Appointments 
until the next Meeting of the Legislature, which shall then fill such 
Vacancies. 

No Person shall be a Senator who shall not have attained to the Age of 
thirty Years, and been nine Years a Citizen of the United States, and who 
shall not, when elected, be an Inhabitant of that State for which he shall 
be chosen. 

The Vice President of the United States shall be President of the Sen- 
ate, but shall have no Vote, unless they be equally divided. 

The Senate shall chuse their other Officers, and also a President pro 
tempore, in the Absence of the Vice President, or when he shall exercise 
the Office of President of the United States. 

The Senate shall have the sole Power to try all Impeachments. When 
sitting for that Purpose, they shall be on Oath or Affirmation. When the/ 
President of the United States is tried, the Chief Justice shall preside : 
And no Person shall be convicted without the Concurrence of two thirds 
of the Members present. 

Judgment in Cases of Impeachment shall not extend further than to 
removal from Office, and Disqualification to hold and enjoy any Office of 
houour, Trust or Profit under the United States : but the Party convicted 
shall nevertheless be liable and subject to Indictment, Trial, Judgment and 
Punishment, according to Law. 

Section. 4. The Times, Places and Manner of holding Elections for 
Senators and Representatives, shall be prescribed in each State by the 
Legislature thereof; but the Congress may at any time by Law make or 
alter such Regulations, except as to the places of chusing Senators. 

The Congress shall assemble at least once in every Year, and such Meet- 
ing shall be on the first Monday in December, unless they shall by Law 
appoint a different Day. 

Section. 5. Each House shall be the Judge of the Elections, Returns 
and Qualifications of its own Members, and a Majority of each shall con- 
stitute a Quorum to do Business; but a smaller Number may adjourn from 
day to day, and may be authorized to compel the Attendance of absent 
Members* in such Manner, and under such Penalties as each House may 
provide. 

Each House may determine the Rules of its Proceedings, punish its 
Members for disorderly Behaviour, and, with the Concurrence of two 
thirds, expel a Member. 

Each House shall keep a Journal of its Proceedings, and from time to 
time publish the same, excepting such Parts as may in their Judgment 



A CITIZEN OF THE UNITED STATES. 27 

require Secrecy ; and the Yeas and Nays of the Members of either House 
on any question shall, at the Desire of one fifth of those Present, be entered 
on the Journal. 

Neither House, during the Session of Congress, shall, without the Con- 
sent of the other, adjourn for more than three days, nor to any other 
Place than that in which the two Houses shall be sitting. 

Section. 6. The Senators and Representatives shall receive a Com- 
pensation for their Services, to be ascertained by Law, and paid out of the 
Treasury of the United States. They shall hi all Cases, except Treason, 
Felony and Breach of the Peace, be privileged from Arrest during their 
Attendance at the Session of their respective Houses, and in going to and 
returning from the same ; and for any Speech or Debate in either House, 
they shall not be questioned in any other Place. 

No Senator or Representative shall, during the Time for which he was 
elected, be appointed to any civil Office under the Authority of the United 
States, which shall have been created, or the Emoluments whereof shall 
have been encreased during such time; and no Person holding any Office 
under the United States, shall be a Member of either House during his 
Continuance in Oifice. 

Section. 7. All Bills for raising Revenue shall originate in the House 
of Representatives; but the Senate may propose or concur with Amend- 
ments as on other Bills. 

Every Bill which shall have passed the House of Representatives and 
the Senate, shall, before it become a Law, be presented to the President 
of the United States; If he approve he shall sign it, but if not he shall 
return it, with his Objections to that House in which it shall have origi- 
nated, who shall enter the Objections at large on their Journal, and pro- 
ceed to reconsider it. If after such Reconsideration two thirds of that 
House shall agree to pass the Bill, it shall be sent, together with the 
objections, to the other House, by which it shall likewise be reconsidered, 
and if approved by two thirds of that House, it shall become a Law. But 
in all such Cases the Votes of both Houses shall be determined by yeas 
and Nays, and the Names of the Persons voting for and against the Bill 
shall be entered on the Journal of each House respectively. If any Bill 
shall not be returned by the President within ten days (Sundays excepted) 
after it shall have been presented to him, the Same shall be a law, in like 
Manner as if he had signed it, unless the Congress by their Adjournment 
prevent its Return, in which Case it shall not be a Law. 

Every Order, Resolution, or Vote to which the Concurrence of the Sen- 
ate and House of Representatives may be necessary (except on a question 
of Adjournment) shall be presented to the President of the United States ; 
and before the Same shall take Effect, shall be approved by him, or being 
disapproved by him, shall be repassed by two thirds of the Senate and 
House of Representatives, according to the Rules and Limitations pre- 
scribed in the Case of a Bill. 

Section. 8. The Congress shall have Power 

To lay and collect Taxes, Duties, Imposts and Excises, to pay the 
Debts and provide for the common Defence and general Welfare of the 
United States ; but all Duties, Imposts and Excises shall be uniform 
throughout the United States; 



28 THE POLITICAL RIGHTS OF 

To borrow Money on the credit of the United States; 

To regulate Commerce with foreign Nations, and among the several 
States, and with the Indian Tribes; 

To establish an uniform Rule of Naturalization, and uniform Laws on 
the subject of Bankruptcies throughout the United States; 

To coin Money, regulate the Value thereof, and of foreign Coin, and fix 
the Standard of Weights and Measures; 

To provide for the Punishment of counterfeiting the Securities and cur- 
rent Coin of the United States; 

To establish Post Offices and post Roads; 

To promote the progress of Science and useful Arts, by securing for 
limited Times to Authors and Inventors the exclusive Right to their re- 
spective Writings and Discoveries; 

To constitute Tribunals inferior to the supreme Court; 

To define and punish Piracies and Felonies committed on the high Seas, 
and Offences against the Law of ^Nations; 

To declare War, grant Letters of Marque and Reprisal, and make Rules 
concerning Captures on Land and Water; 

To raise and support Armies, but no Appropriation of Money to that 
Use shall be for a longer Term than two Years; 

To provide and maintain a Navy; 

To make Rules for the Government and Regulation of the land and 
naval Forces; 

To provide for calling forth the Militia to execute the Laws of the Union, 
suppress Insurrections and repel Invasions; 

To provide for organizing, arming, and disciplining, the Militia, and for 
governing such Part of them as may be employed in the Service of the 
United States, reserving to the States respectively, the Appointment of the 
Officers, and the Authority of training the Militia according to the Disci- 
pline prescribed by Congress; 

To exercise exclusive Legislation in all Cases whatsoever, over such 
District (not exceeding ten Miles square) as may, by Cession of particular 
States, and the Acceptance of Congress, become the Seat of the Govern- 
ment of the United Sfates, and to exercise like Authority over all Places 
purchased by the Consent of the Legislature of the State in which the 
Same shall be, for the Erection of Forts, Magazines, Arsenals, Dock- 
Yards, and other needful Buildings; — And 

To make all Laws which shall be necessary and proper for carrying into 
Execution the foregoing Powers, and all other Powers vested by this Con- 
stitution in the Government of the United States, or in any Department 
or Officer thereof. 

Section. 9. The Migration or Importation of such Persons as any of 
the States now existing shall think proper to admit, shall not be prohibited 
by the Congress prior to the Year one thousand eight hundred and eight, 
but a Tax or Duty may be imposed on such Importation, not exceeding 
ten dollars for each Person. 

The Privilege of the Writ of Habeas Corpus shall not be suspended, 
unless when in Cases of Rebelli :>n or Invasion the public Safety may re- 
quire it. 



A CITIZEN OF THE UNITED STATES. 29 

No Bill of Attainder or ex post facto Law shall be passed. 

No Capitation, or other direct, Tax shall be laid, unless in Proportion 
to the Census or Enumeration herein before directed to be taken. 

No Tax or Duty shall be laid on Articles exported from any State. 

No Preference shall be given by any Regulation of Commerce or Reve- 
nue to the Ports of one State over those of another: nor shall Vessels 
bound to, or from, one State, be obliged to enter, clear, or pay Duties in 
another. 

No Money shall be drawn from the Treasury, but in Consequence of 
Appropriations made by Law; and a regular Statement and Account of 
the Receipts and Expenditures of all public Money shall be published 
from time to time. 

No Title of Nobility shall be granted by the United States : And no 
Person holding any Office of Profit or Trust under them, shall, without 
the Consent of the Congress, accept of any present, Emolument, Office, 
or Title, of any kind whatever, from any King, Prince, or foreign State. 

Section. 10. No State shall enter into any Treaty, Alliance, or Con- 
federation ; grant Letters of Marque and Reprisal ; coin Money ; emit Bills 
of Credit; make any Thing but gold and silver Coin a Tender in Payment 
of Debts ; pass any Bill of Attainder, ex post facto Law, or Law impair- 
ing the Obligation of Contracts, or grant any Title of Nobility. 

No State shall, without the consent of the Congress, lay any Imposts 
or Duties on Imports or Exports, except what may be absolutely necessary 
for executing it's inspection Laws: and the net Produce of all Duties and 
Imposts, laid by any State on Imports or Exports, shall be for the Use of 
the Treasury of the United States; and all such Laws shall be subject to 
the Revision and Controul of the Congress. 

No State shall, without the Consent of Congress, lay any Duty of 
Tonnage, keep Troops, or Ships of War in time of Peace, enter into any 
Agreement or Compact with another State, or with a foreign Power, or 
engage in War, unless actually invaded, or in such imminent Danger as 
will not admit of Delay. 

ARTICLE. II. 

Section. 1. The executive Power shall be vested in a President of the 
United States of America. He shall hold his Office during the Term of 
four Years, and, together with the Vice President, chosen for the same 
Term, be elected, as follows 

Each State shall appoint, in such Manner as the Legislature thereof 
may direct, a Number of Electors, equal to the whole Number of Senators 
and Representatives to which the State may be entitled in the Congress: 
but no Senator or Representative, or Person holding an Office of Trust or 
Profit under the United States, shall be appointed an Elector. 

[* The Electors shall meet in their respective States, and vote by Ballot 
for two Persons, of whom one at least shall not be an Inhabitant of the 
same State with themselves. And they shall make a List of all the Per- 

* This clause -within brackets has been superceded and annulled by the 12th amend- 
ment, on page 35. 



30 THE POLITICAL RIGHTS OF 



sons voted for, and of the Number of Votes for each; which List they 
shall sign and certify, and transmit sealed to the Seat of the Government 
of the United States, directed to the President of the Senate. The Presi- 
dent of the Senate shall, in the Presence of the Senate and House of 
Representatives, open all the Certificates, and the Votes shall then be 
counted. The Person having the greatest Number of Votes shall be the 
President, if such Number be a Majority of the whole Number of Elec- 
tors appointed; and if there be more than one who have such Majority, 
and have an equal Number of Votes, then the House of Representatives 
shall immediately chuse by Ballot one of them for President; and if no 
Person have a Majority, then from the five highest on the List the said 
House shall in like Manner chuse the President. But in chusing the 
President, the Votes shall be taken by States, the Representation from 
each State having one Vote; A Quorum for this Purpose shall consist 
of a Member or Members from twothirds of the States, and a Majority 
of all the States shall be necessary to a Choice. In every Case, after the 
Choice of the President, the Person having the greatest Number of Votes 
of the Electors shall be the Vice President. But if there should remain 
two or more who have equal Votes, the Senate shall chuse from them by 
Ballot the Vice President.] 

The Congress may determine the Time of chusing the Electors, and 
the Day on which they shall give their Votes; which Day shall be the same 
throughout the United States. 

No Person except a natural born Citizen, or a Citizen of the United 
States, at the time of the Adoption of this Constitution, shall be eligible 
to the Office of President; neither shall any Person be eligible to that 
Office who shall not have attained to the Age of thirty-five Years, and 
been fourteen Years a Resident within the United States. 

In Case of the Removal of the President from Office, or of his Death, 
Resignation, or Inability to discharge the Powers and Duties of the said 
Office, the same shall devolve on the Vice President, and the Congress 
may by Law provide for the Case of Removal, Death, Resignation, or 
Inability, both of the President and Vice President, declaring what Officer 
shall then act as President, and such Officer shall act accordingly, until 
the Disability be removed, or a President shall be elected. 

The President shall, at stated Times, receive for his Services, a Com- 
pensation, which shall neither be encreased nor diminished during the 
Period for which he shall have been elected, and he shall not receive 
within that Period any other Emolument from the United States, or any 
of them. 

Before he enter on the Execution of his Office, he shall take the follow- 
ing Oath or Affirmation: — 

"I d'o solemnly swear (or affirm) that I will faithfully execute the 
Office of President of the United States, and will to the best of my Abil- 
ity, preserve, protect and defend the Constitution of the United States. 

Section. 2. The President shall be Commander in Chief of the Army 
and Navy of the United States, and of the Militia of the several States, 
when called into the actual Service of the United States; he may require 
the Opinion, in writing, of the principal Officer in each of the executive 



A CITIZEN OF THE UNITED STATES. 31 

Departments, upon any Subject relating to the Duties of their respective 
Offices, and he shall have Power to grant Reprieves and Pardons for 
Offences against the United States, except in Cases of Impeachment. 

He shall have Power, by and with the Advice and Consent of the Sen- 
ate, to make Treaties, provided two thirds of the Senators present concur; 
and he shall nominate, and by and with the Advice and Consent of the 
Senate, shall appoint Ambassadors, other public Ministers and Consuls, 
Judges of the supreme Court, and all other Officers of the United States, 
whose Appointments are not herein otherwise provided for, and which 
shall be established by Law: but the Congress may by Law vest the Ap- 
pointment of such inferior Officers, as they think proper, in the President 
alone, in the Courts of Law, or in the Heads of Departments. 

The President shall have Power to fill up all Vacancies that may hap- 
pen during the Recess of the Senate, by granting Commissions which shall 
expire at the End of their next Session. 

Section. 3. He shall from time to time give to the Congress Informa- 
tion of the State of the Union, and recommend to their Consideration 
such Measures as he shall judge necessary and expedient; he may, on 
extraordinary Occasions, convene both Houses, or either of them, and in 
Case of Disagreement between them, with Respect to the Time of Ad- 
journment, he may adjourn them to such Time as he shall think proper; 
he shall receive Ambassadors and other public Ministers; he shall take 
Care that the Laws be faithfully executed, and shall Commission all the 
officers of the United States. 

Section. 4. The President, Vice President and all civil Officers of the 
United States, shall be removed from Office on Impeachment for, and Con- 
viction of, Treason, Bribery, or other high Crimes and Misdemeanors. 



ARTICLE III. 

Section. ] . The judicial Power of the United States, shall be vested in 
one supreme Court, and in such inferior Courts as the Congress may from 
time to time ordain and establish. The Judges, both of the supreme and 
inferior Courts, shall hold their Offices during good Behavior, and shall, 
at stated Times, receive for their Services, a Compensation, which shall not 
be diminished during their Continuance in Office. 

Section. 2. The judicial Power shall extend to all Cases, in Law and 
Equity, arising under this Constitution, the Laws of the United States, 
and Treaties made, or which shall be made, under their Authority; — to 
all Cases affecting Ambassadors, other public Ministers, and Consuls; — 
to all Cases of admiralty and maritime Jurisdiction ; — to Controversies to 
which the United States shall be a Party ; — to Controversies between two 
or more States ; — between a State and Citizens of another State; — between 
Citizens of different States, — between Citizens of the same State claiming 
Lands under Grants of different States, and between a State, or the Citi- 
zens thereof, and foreign States, Citizens or Subjects. 

In all Cases affecting Ambassadors, other public Ministers and Consuls, 
and those in which a State shall be Party, the supreme Court shall have 



'32 THE POLlllCAL RIGHTS OF 

original Jurisdiction. In all the other Cases before mentioned, the supreme 
Court shall have appellate Jurisdiction, both as to Law and Fact, with such 
Exceptions, and under such Regulations as the Congress shall make. 

The Trial of all Crimes, except in Cases of Impeachment, shall be by 
Jury; and such Trial shall be held in the State where the said Crimes 
shall have been committed ; but when not committed within any State, the 
Trial shall be at such Place or Places as the Congress may by Law have 
directed. 

Section. 3. Treason against the United States, shall consist only in 
levying War against them, or in adhering to their Enemies, giving them 
Aid and Comfort. No Person shall be convicted of Treason unless on the 
Testimony of two Witnesses to the same overt Act, or on Confession in 
open Court. 

The Congress shall have Power to declare the Punishment of Treason, 
but no Attainder of Treason shall work Corruption of Blood, or Forfeiture 
except during the Life of the Person attainted. 

ARTICLE. IV. 

Section. 1. Full Faith and Credit shall be given in each State to the 
public Acts, Records, and judicial Proceedings of every other State. And 
the Congress may by general Laws prescribe the Manner in which such 
Acts, Records and Proceedings, shall be proved, and the Effect thereof. 

Section. 2. The Citizens of each State shall be entitled to all Privi- 
leges and Immunities of Citizens in the several States. 

A Person charged in any State with Treason, Felony, or other Crime, 
who shall flee from Justice, and be found in another State, shall on Demand 
of the executive Authority of the State from which he fled, be delivered 
up, to be removed to the State having Jurisdiction of the Crime. 

No Person held to Service or Labour in one State, under the Laws 
thereof, escaping into another, shall, in Consequence of any Law or Regu- 
lation therein, be discharged from such Service or Labour, but shall be 
delivered up on Claim of the Party to whom such Service or Labour may 
be due. 

Section. 3. New States may be admitted by the Congress into this 
Union; but no new State shall be formed or erected within the Jurisdiction 
of any other State; nor any State be formed by the Junction of two or 
more States, or Parts of States, without the Consent of the Legislatures 
of the States concerned as well as of the Congress. 

The Congress shall have Power to dispose of and make all needful Rules 
and Regulations respecting the Territory or other Property belonging to 
the United States; and nothing in this Constitution shall be so construed 
as to Prejudice any claims of the United States, or of any particular 
State. 

Section. 1. The United States shall guarantee to every State in this 
Union a Republican Form of Government, and shall protect each of them 
against Invasion; and on Application of the Legislature, or of the Execu- 
tive (when the Legislature cannot be convened) against domestic Violence. 



A CITIZEN OF THE UNITED STATES. 33 



ARTICLE. V. 

The Congress, whenever two thirds of both Houses shall deem it neces- 
sary, shall propose Amendments to this Constitution, or, on the Applica- 
tion of the Legislatures of two thirds of the several States, shall call a 
Convention for proposing Amendments, which, in either Case, shall be 
valid to all Intents and Purposes, as Part of this Constitution, when ratified 
by the Legislatures of three fourths of the several States, or by Conven- 
tions in three fourths thereof, as the one or the other Mode of Ratification 
may be proposed by the Congress ; Provided that no Amendment which 
may be made prior to the Year one thousand eight hundred and eight shall 
in any Manner affect the first and fourth Clauses in the Ninth Section of 
the first Article ; and that no State, without its Consent, shall be deprived 
of its equal Suffrage in the Senate. 



ARTICLE. VI. 

All Debts contracted and Engagements entered into, before the Adop- 
tion of this Constitution, shall be as valid against the United States under 
this Constitution, as under the Confederation. 

This Constitution , and the Laws of the United States which shall be 
made in Pursuance thereof; and all Treaties made, or which shall be made, 
under the authority of the United States, shall be the supreme Law of the 
Land; and the Judges in every State shall be bound thereby, any Thing 
in the Constitution or Laws of any State to the Contrary notwithstanding. 

The Senators and Representatives before mentioned, and the Members 
of the several State Legislatures, and all executive and judicial Officers, 
both of the United States and of the several States, shall be bound by Oath 
or Affirmation, to support this Constitution; but no religious Test shall 
ever be required as a Qualification to any Office or public Trust under the 
United States. 

ARTICLE. VII. 

The Ratification of the Conventions of nine States, shall be sufficient 
for the Establishment of this Constitution between the States so ratifying 
the Same. 



34 THE POLITICAL RIGHTS OF 



ARTICLES IN ADDITION TO, AND AMENDMENT OF, THE CON- 
STITUTION OF THE UNITED STATES OF AMERICA, 

Proposed by Congress, and ratified by the Legislatures of the several States, 
pursuant to the fifth article of the original Constitution. 

(ARTICLE 1.) 

Congress shall make no law respecting an establishment of religion, or 
prohibiting the free exercise thereof ; or abridging the freedom of speech, 
or of the press; or the right of the people peaceably to assemble, and to 
petition the Government for a redress of grievances. 

(ARTICLE 2.) 

A well regulated Militia, being necessary to the security of a free State, 
the right of the people to keep and bear Arms, shall not be infringed. 

(ARTICLE III.) 

No Soldier shall, in time of peace be quartered in any house, without 
the consent of the Owner, nor in time of war, but in a manner to be pre- 
scribed by law. 

(ARTICLE IV.) 

The right of the people to be secure in their persons, houses, papers, 
and effects, against unreasonable searches and seizures, shall not be vio- 
lated, and no Warrants shall issue, but upon probable cause, supported by 
Oath or affirmation, and particularly describing the place to be searched, 
and the persons or things to be seized. 

(ARTICLE V.) 

No person shall be held to answer for a capital, or otherwise infamous 
crime, unless on a presentment or indictment of a Grand Jury, except in 
cases arising in the land or naval forces, or in the Militia, when in actual 
service in time of War or public danger ; nor shall any person be subject 
for the same offence to be twice put in jeopardy of life or limb; nor shall 
be compelled in any Criminal Case to be a witness against himself, nor be 
deprived of life, liberty, or property, without due process of law; nor shall 
private property be taken for public use, without just compensation. 

(ARTICLE VI.) 

In all criminal prosecutions, the accused shall enjoy the right to a 
speedy and public trial, by an impartial Jury of the State and district 
wherein the crime shall have been committed, which district shall have 



A CITIZEN OF THE UNITED STATES. 35 

been previously ascertained by law, and to be informed of the nature and 
cause of the accusation; to be confronted with the witnesses against him; 
to have Compulsory process for obtaining Witnesses in his favour, and to 
have the Assistance of Counsel for his defence. 



(ARTICLE VII.) 

In Suits at common law, where the value in controversy shall exceed 
twenty dollars, the right of trial by jury shall be preserved, and no fact 
tried by a jury shall be otherwise re-examined in any Court of the United 
States, than according to the rules of the common law. 

(ARTICLE VIII.) 

Excessive bail shall not be required, nor excessive fines imposed, nor 
cruel and unusual punishments inflicted. 

(ARTICLE IX.) 

The enumeration in the Constitution, of certain rights, shall not be 
construed to deny or disparage others retained by the people. 



(ARTICLE X.) 

The powers not delegated to the United States by the Constitution, nor 
prohibited by it to the States, are reserved to the States respectively, or 
to the people. 

ARTICLE XI. 

The Judicial power of the United States shall not be construed to 
extend to any suit in law or equity, commenced or prosecuted against one 
of the United States by Citizens of another State, or by Citizens or Sub- 
jects of any Foreign State. 



ARTICLE XII. 

The Electors shall meet in their respective states, and vote by ballot 
for President and Vice President, one of whom, at least, shall not be an 
inhabitant of the same state with themselves; they shall name in their 
ballots the person voted for as President, and in distinct ballots the person 
voted for as Vice-President, and they shall make distinct lists of all persons 
voted for as President, and of all persons voted for as Vice-President, and 
of the number of votes for each, which lists they shall sign and certify, and 
transmit sealed to the seat of the government of the United States, directed 
to the President of the Senate; — The President of the Senate shall, in 
presence of the Senate and House of Representatives, open all the certifi- 
cates and the votes shall then be counted; — The person having the greatest 



36 THE POLITICAL RIGHTS OF 

number of votes for President, shall be the President, if such number be a 
majority of the whole number of Electors appointed; and if no person 
have such majority, then from the persons having the highest numbers not 
exceeding three on the list of those voted for as President, the House of 
Representatives shall choose immediately, by ballot, the President. But 
in choosing the President, the votes shall be taken by states, the represen- 
tation from each state having one vote; a quorum for this purpose shall 
consist of a member or members from two-thirds of the states, and a 
majority of all the states shall be necessary to a choice. And if the House 
of Representatives shall not choose a President whenever the right of 
choice shall devolve upon them, before the fourth day of March next 
following, then the Vice-President shall act as President, as in the case of 
the death or other constitutional disability of the President. The person 
having the greatest number of votes as Vice-President, shall be the Vice- 
President, if such number be a majority of the whole number of Electors 
appointed, and if no person have a majority, then from the two highest 
numbers on the list, the Senate shall choose the Vice-President; a quorum 
for the purpose shall consist of two-thirds of the whole number of Senators, 
and a majority of the whole number shall be necessary to a choice. But 
no person constitutionally ineligible to the office of President shall be 
eligible to that of Vice-President of the United States. 



ARTICLE Xin. 

1. Neither slavery nor involuntary servitude, except as a punishment 
for crime, whereof the party shall have been duly convicted, shall exist 
within the United States, or any place subject to their jurisdiction. 

2. Congress shall have power to enforce this article by appropriate 
legislation. 



ARTICLE XIV. 

Section 1. All persons born or naturalized in the United States, and 
subject to the jurisdiction thereof, are citizens of the United States and 
of the State wherein they reside. No State shall make or enforce any 
law which shall abridge the privileges or immunities of citizens of the 
United States, nor shall any State deprive any person of life, liberty, or 
property, without due process of law, nor deny to any person within its 
jurisdiction the equal protection of the laws. 

Section 2. Representatives shall be apportioned among the several 
States according to their respective numbers, counting the whole number 
of persons in each State, excluding Indians not taxed. But when the 
right to vote at any election for the choice of electors for President and 
Vice-President of the United States, representatives in Congress, the ex- 
ecutive and judicial officers of a State, or the members of the legislature 
thereof, is denied to any of the male inhabitants of such State, being 
twenty-one years of age, and citizens of the United States, or in any way 
abridged, except for participation in rebellion or other crime, the basis of 



A CITIZEN OF THE UNITED STATES. 37 

representation therein shall be reduced in the proportion which the num- 
ber of such male citizens shall bear to the whole number of male citizens 
twenty-one years of age in such State. 

Section 3. No person shall be a senator or representative in Congress, 
or elector of President and Vice-President, or hold any office, civil or mil- 
itary, under the United States, or under any State, who having previously 
taken an oath as a member of Congress, or as an officer of the United 
States, or as a member of any State legislature, or as an executive or 
judicial officer of any State, to support the Constitution of the United 
States, shall have engaged in insurrection or rebellion against the same, 
or given aid or comfort to the enemies thereof; but Congress may, by a 
vote of two-thirds of each house, remove such disability. 

Section 4. The validity of the public debt of the United States, 
authorized by law, including debts incurred for payment of pensions and 
bounties for services in suppressing insurrection or rebellion, shall not be 
questioned. But neither the United States nor any State shall assume or 
pay any debt or obligation incurred in aid of insurrection or rebellion 
against the United States, or any claim for the loss or emancipation of any 
slave; but all such debts, obligations, and claims shall be held illegal and 
void. 

Section 5. The Congress shall have power to enforce, by appropriate 
legislation, the provisions of this article. 

ARTICLE XV. 

Section 1. The right of citizens of the United States to vote shall 
not be denied or abridged by the United States or by any State on account 
of race, color, or previous condition of servitude. 

Section 2. The Congress shall have power to enforce this article by 
appropriate legislation. 



38 THE POLITICAL RIGHTS OF 



CHAPTER IV. 

COMMENTS UPON THE CONSTITUTION 
OF THE UNITED STATES. 

SECTION I. 
WHAT OUR CONSTITUTION IS. 

From the day the constitution was adopted to this time, the 
question, what that constitution is, has divided men's minds. At 
sundry times debated and discussed with earnestness, and arraying 
different political parties against each other, at length the antago- 
nism which had been growing for generations was intensified into 
open hostility, and the late war broke forth. Slavery made the 
political question a local question. But those w T ho seceded from 
the Union regarded the antislavery movement only as the occasion 
for exercising their right of secession. Some went so far as to 
maintain that each State had a right to secede whenever it chose 
to, and for no other reason than its will and pleasure. But generally 
they rested their secession upon the principle that the constitution 
is a compact between the States ; that each of the parties has the 
right of judging whether that compact be violated ; and that any 
party deeming it violated has a right to leave or secede from the 
Union formed by the compact. 

It is to the last degree unjust and unwise in those who stand on 
either side of this great question to accuse those who stand on the 
other side, of holding views which are wholly and obviously un- 
reasonable, and are induced only by personal, local, and selfish 
interests. On the contrary, the question is one of great and inherent 
difficulty, and from the foundation of the government has divided 
able and honest men. 

One of the forms of this question is this : Is the Constitution of 
the United States . a compact ? The answer I should give is : Yes, 
it is a compact ; but it is also much more than a compact. 

The question may then be asked, Supposing it to be a compact, 
is it a social or a federal compact ? In other words, is it a compact 
between all the members of this political society, meaning thereby 
all the individuals who collectively make up the people, each one 
entering into covenant with all the rest ; or is it a compact between 
the several States who come together in a federal league ? 



A CITIZEN OF THE UNITED STATES. 39 

Here my answer would be, it is both ; neither exclusively, but 
both reconciled into unity. 

It is, in the first place, a compact between the States. The very 
name of this nation, " The United States," indicates this. The 
States, while still colonies, first met by delegates to think of, and, if 
they could, provide for, confederation. The States, then, met by 
delegates, and prepared and submitted to the people the Articles of 
Confederation. When it became apparent that these were insuffi- 
cient and unsatisfactory, the States came together by delegates in a 
convention, which prepared this constitution, and returned it to the 
States. It was provided that it should go into force, not when such 
a number or proportion of the people should approve of and accept 
it, but when it should be ratified by the conventions of nine of the 
States. So, too, the constitution itself constantly preserves the dis- 
tinction between the States, as in choosing the President and the 
members of the Senate and House of Representatives, and continu- 
ally refers to the States elsewhere. 

On the other hand, the constitution itself, as decidedly declares 
that it is made by the people. " We the people of the United 
States, ... do ordain and establish this constitution for the United 
States of America," It is made for the States; but it is the people 
who make it. 

The States met in convention to frame it ; but they met by dele- 
gates appointed by the people. And when it was framed and re- 
mitted for approval and adoption to the States, it was sent there, 
not to be ratified by their executive or legislative bodies, but by 
conventions of delegates to be chosen by the people expressly to 
take this matter into consideration. 

These considerations, on the one side and the other, rest perhaps 
too much upon mere verbal construction. Therq are those of 
greater weight which we may invoke to help us answer this ques- 
tion. No precedents in human history can give us much assistance. 
The work which our fathers had to do was a new work. Leagues 
and confederacies had been made before, but never under such 
circumstances or for such a purpose ; and. the work they did must 
be judged of by itself. 

The very first principle which came forth from the circum- 
stances and doings of the time is, that when men come together to 
accomplish any great purpose, the will of the majority must govern. 
Henceforward this great principle must stand forth among human 
transactions, and wield a force which it never possessed before. 
There had been forms of government which called themselves 
republican. But this great word bore a very different meaning 
formerly from that which it bears now. Our fathers had achieved 



40 THE POLITICAL RIGHTS OF 

their independence. They had all been subjects of a personal sov- 
ereign. When 'they cast off this sovereignty, they had no master ; 
nor were any of them masters over the rest. They came together 
as political equals : all free, and all equally free. It followed, of 
necessity, that the will of the majority must govern. Everybody 
felt, everybody saw, that if the majority did not govern, nothing 
could govern : and if there were no government, there could be no 
social order, no organized community. 

Under their charters, the people of the different colonies had 
voted on many important matters, and determined them by a ma- 
jority. When the colonies became States, this became, of neces- 
sity, the universal rule. Within each State no other method was 
thought of. The machinery of counties and townships was still 
made use of, because they were accustomed to it, and it was the 
most convenient way of ascertaining the will of the majority. So 
when the question came, Shall we form a Union, shall we become a 
nation, and how shall we become a nation, and what shall it be ? — all 
these questions were answered by a convention of delegates, chosen 
in the several States by a majority vote. That convention framed a 
constitution for the people ; and the people in the States, and through 
State organizations, accepted it. This was done in conventions of 
delegates chosen by majority votes, and the constitution was ratified 
in these conventions by a majority vote. 

And what did the people do ? " We the people of the United 
States . . . ordain and establish this constitution." Surely words 
of such emphatic meaning were not chosen by accident or without 
design. They tell us that the constitution is a supreme, a fixed, and 
abiding law ; ordained and established, so that it might make of the 
people, from whose will it was born, a nation, — a permanent and 
abiding nation. This it could not be and do if the very existence of 
the constitution and of the Union itself were made dependent upon 
the will and pleasure of any portion of the people who framed it. No 
portion of the people, whether under the name and form of a State, 
or county, or township, or by any other designation, could annul 
it. True to its fundamental principle, the will of the majority, and 
knowing that the will of the majority may change either from 
change of circumstances or the teaching of experience, it provides 
the means of change, which will be considered presently. But 
unless and until changed in accordance with these provisions, the 
constitution remains, the fixed and abiding, the ordained and estab- 
lished, framework of our political and national existence. 

The principle which underlies the Constitution of the United 
States, and every State constitution, and upon which all are founded, 
is this, — the utmost liberty is given to the individual, and yet he, 



A CITIZEN OF THE UNITED STATES. 41 

with others, must yield so much of this as is needed to give due life 
and efficiency to the nearest and least community 'of which he is a 
member ; this smaller community joins with others to make a larger ; 
and that a yet larger, until the series ends in a nation which embraces 
the whole. And in the whole series, from the lowest step to the 
highest, each for its own sake gives up so much of right and power as 
is needed to make the community which stands on the next higher 
step all that it should be. Founded upon this principle, the system 
oi government formed by the Constitution of the United States is 
not, I think, to be regarded as, merely and upon the whole, the best 
thing which circumstances permitted our fathers to construct, but 
as in itself near to the perfection of a republican government. 

I am perfectly aware that this may seem to many persons an 
obscure statement. Let me try to explain my meaning. 

The first form of union for a common regulation is in the family ; 
and that the family may be happy, each individual member gives 
up somewhat of his or her own mere will and pleasure. All our 
citizens, who are not exceptions to a prevailing method, live in fam- 
ilies ; and it is there that the work of government begins ; there its 
first lessons are learned ; there its habits are formed ; there its first 
fruits are gathered; and there, if the family government is wise and 
good, those fruits are peace and happiness and mutual assistance and 
universal improvement. 

But families need that duties should be performed and advantages 
secured which demand combination with other families, and the 
strength and support of united counsel and united action ; and to 
this end families combine into townships or cities. To the town or 
city, as an organization, are committed all those duties and utilities 
the need of which has called them into being, and to the town or 
city is freely entrusted all the power requisite to a full and complete 
discharge of all those duties. 

And then the same principle is further applied. Beyond those of 
the towns and cities are, again, common duties and utilities, which 
are all those of a certain district ; and within this district the towns 
coalesce into counties, to which, again, as separate organizations, are 
confided the duties which can be best discharged in this way and 
by this means ; and with these duties goes all the power requisite to 
the best performance of them. 

Nor is this principle then arrested. For the counties are gath- 
ered into one body, and this is the State. And who are they who 
then form the State, — who constitute the State ? The people, and 
the whole people. They who first form its families, and then its 
towns and cities and counties, finally, in their widest assemblage, 
form the State. And for what do they form it ? Precisely for all 



42 THE POLITICAL RIGHTS OF 

■ ■ ' 

those duties and all those utilities which embrace the whole people, 
which require for their due performance a due regard to the whole 
people, and which may serve not only to cement all together by 
a common interest, a common safety, and a common prosperity, but 
may use the strength of the whole for the protection of each, and 
for the preservation of all personal rights, and family rights, and all 
the rights of those lesser and larger communities into which families 
and persons are gathered. 

And, then, what power do the people who constitute the State 
give to it ? Abundant power to discharge all its duties ; to do the 
whole of its work of legislation for the whole, and of common de- 
fence and protection through all the departments of government ; 
but nothing more. This, then, is the theory of our State polity ; 
and so far as we are wise, this it is in active operation ; and so far 
as we are truly prosperous, this prosperity is its effect. 

Did the thought ever enter into the mind of a human being that 
it would be wise for any State to abandon to-morrow all town and 
city and county lines and organizations, and commit all the duties 
now performed by their means to the central power of the State ? 
No one can imagine such a thing. And he who should desire it 
must, if he would be consistent, go yet further, and propose also to 
obliterate all family lines, all family organization and authority, and 
ask of the central power to determine what food shall be placed on 
every table, and what clothes every member of the household shall 
wear. No ; State rights, in the just and rational meaning of that 
phrase, are perfectly compatible with national sovereignty. 

We all feel that our present form of government is perfectly 
adapted to the great end of all republican government, and that is, 
a wise self-government ; and the reason of this adaptation is, that 
it leaves to the individual, with the least possible control or inter- 
ference, the freedom of voluntary choice and action. And it 
gathers individuals into communities, the least, the larger, and at 
length the largest, only so far as a common necessity and a common 
good require this, leaving to each one full power to do all that is 
needful to subserve and protect its best interests, and promote its 
highest prosperity. And then it seeks so to form these communities, 
and so to provide for them, and so to act by its common legislation 
upon individuals and the bodies into which they are gathered, as to 
lead and guide each and all into that conduct which shall be best for 
each and for all, with the least possible compulsory action upon any. 

When the several States came together and formed a nation, 
what else did they but take a step further forward upon the same 
pathway, which each State does so well and so wisely in treading 
for herself? It seems to me that it was precisely this step and no 



A CITIZEN OF THE UNITED STATES. 43 

other which was taken when the Constitution of the United States 
was formed, and this nation was born. 

It may be asked, Is there not here a division of sovereignty and 
of power, which shows that much is wanting to constitute the full 
strength of a national government ? I answer, The national gov- 
ernment has at this moment, by force of the constitution, all the 
strength — absolutely all — which it needs, or could profitably use, 
as a central national government. I answer, next, that, by the pro- 
visions of our national and State constitutions, the reserved powers 
of every State may be, and, so far as that State does its duty, will 
be, prepared and developed to their utmost efficiency, and then 
imparted to the nation in its need. Did not the efforts made by 
all the States during the late war prove this? 

The constitution thus framed makes use throughout of State 
machinery. More than this, it recognizes the States as separate 
organizations ; and we shall presently see that it watches with the 
most careful consideration over the interests and safety of the 
smaller and weaker States which thus came into union with larger 
and stronger States. But through all this, and by means of all 
this, the one end and aim in framing the constitution, in adopting 
it, and in carrying out its various provisions through coming ages, 
was to ascertain and carry into effect the will of the majority. 

This, we cannot understand too well, is a new thing upon earth. 
From the earliest times of recorded history there was never before 
an instance of a people, large enough to form a nation, perfectly 
liberated from all restraint, all government delivered over into their 
own hands, with no power on earth to restrain or coerce them, 
and then deliberately forming an organic constitution by which 
they should govern themselves, by the vote of the majority. 

Because mankind had no experience of such a thing as this, our 
fathers had nothing to help them in their work but their knowledge 
of human nature, their earnest desire to secure the prevalence of right 
over wrong, and their wisdom in discovering the means of doing 
so. To that wisdom we owe, under Divine Providence, our con- 
stitution ; and great is the marvel that the experience of nearly a 
century, in good part a stormy and painful experience, should have 
revealed so few errors or deficiencies. 

One of the greatest dangers to be guarded against was the abuse 
of their power by the majority. In all ages, the supreme power, the 
sovereignty, whatever its form, had been abused. Emperors, kings, 
and absolute rulers, under any name, had sometimes been despotic, 
unjust, and cruel. When the sovereignty was given to a majority, 
what was to prevent that majority from tyrannizing over a pros- 
trate minority? The answer to this question is, The constitution. 



44 THE POLITICAL RIGHTS OF 



It accomplishes the purpose of curbing the will of the majority, so 
that while free for all good, it might be restrained from evil, by 
three means. First, the constitution itself, as the law of the law, as 
a declaration of the rights of all men, and a fixed and unyielding 
barrier against any assault upon those rights, exerts a powerful 
influence to protect the minority against the abuse of power by a 
majority Next, the checks and hinderances by which the will of 
the people is delayed by repeated and protracted consideration 
before it acquires the force of law ; while it is only delayed, and 
not prevented from enforcing itself as law after it has received clue 
consideration. This is accomplished mainly through the structure 
of the legislative body; and we shall treat of it more fully when 
we come to consider the form and functions of the body to which 
the power of making law is entrusted. 

But most of all is the supremacy of law and right secured by 
the judicial power, its full authority, its independence, and its 
place and function as interpreter and defender of the constitution. 
This subject, also, which we deem of vital importance to a just 
comprehension of our constitution, we shall treat of more fully 
when considering the judicial power: its structure, its duty, and 
its value. 



SECTION II. 

THE RECONCILIATION OF STATE RIGHTS AND NATIONAL 
SOVEREIGNTY. 

From the facts stated in the chapter on the history of the con- 
stitution, it will be seen that the greatest difficulty in forming and 
in adopting it arose from the reluctance of the people in the several 
States to relinquish any part of their independent sovereignty. They 
saw and they felt that if the United States became a nation, it must 
possess, in all national matters, sovereignty ; and that, so far as it 
was sovereign, the several States were subordinate. As this was 
the great objection to the constitution, so the adoption of the con- 
stitution must be regarded as a yielding of the States on this 
point. 

It must, however, he remembered, that while our nationality 
involved the giving up by the States of so much of their sovereignty 
as was necessary to constitute a national sovereignty, this necessity 
went no further. The several States gave up nothing which they 
could hold, and the United States be a nation. Here was the practical 
difficulty for those whose work it was to frame a constitution ; and 
they displayed nothing less than a marvellous wisdom in overcoming 



A CITIZEN OF THE UNITED STATES. 45 

this difficulty, or in taking from the States and giving to the Union 
all that was necessary to make the Union a nation, and leaving to 
the States all that was not necessary for this purpose. Let us now 
look at the provisions by which they effected this purpose. 

The second clause of the sixth article of the constitution is as 
follows: "This constitution, and the laws of the United States 
which shall be made in pursuance thereof, and all treaties made 
or which shall be made under the authority of the United States, 
shall be the supreme law of the land ; and the judges in every State 
shall be bound thereby, any thing in the constitution or laws of any 
State to the contrary notwithstanding." 

This article asserts and establishes the nationality of the Union, 
and the sovereignty of this nationality; for that is the necessary 
meaning and effect of making all laws and treaties made under its 
authority the supreme law of the land. 

This sovereignty being established, the next question is, What 
does it embrace, or how far does it extend ? The answer is, Just so 
much and so far as it is carried by the constitution itself, and not a 
jot farther. The constitution being a written instrument, the pur- 
pose of which was to create a national constitution by abstracting 
so much of the sovereignty of the States as was necessary therefor 
and putting together what was thus taken, the natural and just con- 
struction would have been, that whatever was not taken from the 
States, expressly or by necessary implication, was left to them. But 
to make this sure, Articles IX. and X. of the amendments were 
adopted. They provide, that " the enumeration in the constitution 
of certain rights shall not be construed to deny or disparage others 
retained by the people. . . . The powers not delegated to the United 
States by the constitution, nor prohibited by it to the States, are 
reserved to the States respectively, or to the people." 

The constitution has been subjected in all its parts to the severest 
examination and the most acute criticism. But it may safely be 
said that no one has succeeded in pointing out clearly and rationally, 
any claim or assumption in the constitution of any right or power 
which the Union possesses or can exercise not necessary to our 
existence and prosperity as a nation. But the principles of con- 
struction above stated, and the amendments above cited, as they 
reserve to the States whatever is not taken from them, and as they 
give supreme authority to laws made under the constitution, required 
express declarations as to what subjects Congress could make laws 
about, and also as to what things the States should not do. The 
first will be found in the eighth section of the first article, beginning, 
"The Congress shall have power;" the second may be found in the 
tenth section of the same article, beginning, " No State shall," &c. 



46 THE POLITICAL RIGHTS OF 

We shall have occasion hereafter, in the course of these comments, 

to refer more particularly to some of these permissions and to some 
of these prohibitions. Here we will only say, that a familiar prin- 
ciple of legal construction will apply to both of these enumerations; 
namely, that an enumeration which purports to be complete and 
exhaustive, excludes all items not expressly included. 

A most important provision for the preservation of State rights 
is to be found in the peculiar construction of the Senate. The 
representatives in Congress are apportioned among the several States 
according to the number of their population. But the Senate is 
composed of two senators from each State. This provision is appar- 
ently a very simple one; but it is of extreme importance. 

It was a compromise — more than ingenious, for it was a wise 
and just compromise — between extreme views, both of which were 
pressed with very great urgency. On the one hand, it was said to 
be of the very essence of a republican representative government 
that all its citizens should be equal in power and privilege. If the 
United States were to be a nation, it was to be a republic, and could 
not, without losing an essential quality of a republic, give to a por- 
tion of its people a distinct advantage in the exercise of political 
power over any other equal portion. Admit that a large State would 
have more power in the government than a small State, no citizen 
or citizens of the larger State would have more power than the same 
number of citizens in the smaller. If the larger State had more 
power, that only meant that its citizens, taken together, possessed 
the same power that they would have if, in the same number, they 
lived in small States ; and why should their political power be taken 
from them because they united together to form a large State ? 

On the other hand, it was contended that, for many purposes, it 
must be considered that the States had come together to form a 
Union. They had, each one of them, occupations and interests which 
were peculiar to that State. If they joined with the much larger 
States in a government which was purely popular, the small must 
yield to the large in all things, and be crushed in the conflict. 
Because the Union would be a republic, much power must be given 
to a merely popular vote, or to majority of numbers. But because 
it was a Union formed from independent and sovereign States, who 
gave up much of their independent sovereignty for the sake of 
union, some regard must be paid to their rights as States, and an 
equality between the States must be conceded in some important 
points of political power. 

This was admitted ; and how much was conceded may be inferred 
from the fact that Delaware, with a territory of a little more than 
two thousand miles, and a population of about one hundred thousand, 



A CITIZEN OF THE UNITED STATES. 47 

has the same representation in the Senate that New York has, with 
a territory more than twenty times as large, and a population about 
forty times as large. Hence the two States have equal powers as 
to the acceptance or rejection of treaties, the confirmation of all 
appointments by the President, and in trials of impeachment. More- 
over, as each State has as many electors of President and Vice- 
President as the whole number of its representatives and senators, 
the smaller States have in this important matter a power larger in 
proportion to the number of their population than the larger States 
possess. 

But perhaps the most important advantage secured to the smaller 
States is, that they have equal power with the larger as to any 
amendments of the constitution, as they can be made only by three- 
fourths of the several States ; and should there be an agreement in 
opinion or feeling between all, or nearly all, of the smaller States, it 
might come to pass that such amendments would be made or bo 
rejected by much less than a majority of the whole people. 



SECTION in. 
THE DISTRIBUTION OF POWER. 

There are three great governmental powers or functions. One is 
the executive, which cariies all the laws into eifect ; another is the 
legislative, which makes all the laws ; the third is the judicial, which 
determines whether that which is alleged to be law is in fact law, 
and which construes and interprets the laws, or declares what they 
mean, and how they apply to any particular case. 

It is perfectly certain and obvious to any one who will think 
about it, that the union of these three powers in the same person 
or body makes him or it perfectly despotic. For if he who exe- 
cutes the laws makes them just as he pleases, and then construes 
and applies them just as he pleases, he must needs be a perfect 
despot, or, as the modern word is, an autocrat, which means one 
who has all power in himself. 

Then it should be obvious to us, for it is quite as true, that prog- 
ress away from despotism, progress in a well-ordered and guarded 
liberty, depends upon»and may be measured by the degree in which 
these three great and fundamental powers of government are sep- 
arated from each other, and each of them protected from the invasion 
of the others. Then the executive can do nothing but execute 
the laws which are made for him by one body and interpreted for 
him by another, over which he has no absolute control. Legislators 



48 THE POLITICAL RIGHTS OF 

have less temptation to make laws to strengthen their own hands; 
because the laws, when they are made, pass out of their hands, 
leaving behind them no power to enforce the laws. The judicial 
body is under still less temptation to interpret laws wrongly ; for 
it can gain nothing by it, as it has nothing to do with making the 
laws or with enforcing them. 

Hence, as civilization advanced in the world, and governments 
improved, this distinction was made, and the importance of it dis- 
cerned. Thus, in England, the government is monarchical in form, 
but a mingled web of aristocracy and democracy in feet ; for the 
English king or queen has no political power, and is only a pageant. 
But there are many republican elements in their government, and a 
great deal of freedom in the nation. And there this distinction 
between the three great powers of government is carried out to a 
considerable extent. Our fathers, when they lived in colonies sub- 
ject to Great Britain, had more of this distinction than they had in 
the parent country, and saw it more clearly and valued it more 
highly. And when they became independent, and framed their own 
constitutions, State and national, they took excellent care to make 
this distinction as perfect as possible. 

We shall see as we go on that this distinction is not perfect ; 
and perhaps we shall have reason to look upon this imperfection as 
a weak spot in our national constitution, and to think it would be 
strengthened if these great powers were more distinctly separated, 
and the bodies which hold them made more independent of each 
other. 

SECTION IV. 
THE EXECUTIVE POWER. 

The executive power is vested in a President. He holds his office 
for four years ; and there is nothing in the constitution to prevent 
him, or the Vice-President, from being re-elected any number of 
times. 

Originally the method of electing the President and Vice-President 
was very different from that now in force. Then the electors voted 
for two persons, and whoever had the highest number of votes (if 
he had a majority of all the votes) was President; and the person 
having the next greatest number Of votes was Vice-President. If 
there was no majority, the House of Representatives, voting by 
States, and each State having one vote, chose the President. At 
the election for 1801 there was no majority, — Thomas Jefferson 
having sixty-three votes; Aaron Burr, the same number; John 



A CITIZEN OF THE UNITED STATES. 49 

Adams, sixty-five ; C. C. Pinkney, sixty-four ; and John Jay, one. On 
the first ballot in the House, eight States voted for Jefferson, six for 
Burr, and the votes of two States were divided ; three States having 
then been added to the original thirteen. There were thirty-four 
ballots without any change from the first ; but on the thirty-sixth 
ballot Jefferson had ten votes and Burr had four: so Jefferson became 
President, and Burr Vice-President. This exhibition of the incon- 
venience and embarrassment which might arise from that method 
of electing these officers, led to the 12th amendment, which was 
adopted in 1804, and has been in force ever since. By this amend- 
ment the electors vote in distinct ballots for President and for 
Vice-President. The provisions for filling these offices in case no 
one has a majority will be seen in the 12th amendment, as hereto- 
fore given in the constitution. 

The theory of choosing the President and Vice-President by 
electors is excellent; but it does not work well. This theory 
is, that the people in the several States should choose their wisest 
men, and that the electors so chosen should choose the men for these 
high offices who, in their judgment, were best fitted for them. But 
in point of fact the electors exercise no judgment whatever. They 
are simply the instruments of the party which chooses them, and 
are chosen to vote for the candidate of the party, and always do so. 
As soon as the electors are chosen and known to the country, it is 
certainly known who will be President and Vice-President, the vote 
by electors having become a mere formality. These officers are, in 
fact, chosen by a popular vote. But the machinery of electors 
chosen by States may put the choice of President and Vice- 
President into the hands of a minority of the people, because each 
State has as many electors as it has representatives and senators ; 
and a small majority in a large number of the smaller States might 
constitute a majority of the electors, while the minority of the 
electors were chosen by and represented a majority of the people. 
There have been, on this and other grounds, many attempts to avoid 
these mischiefs by a direct popular vote. As yet, however, they 
have not succeeded. 

For the powers of the President, we refer to the second article 
of the constitution. We must, however, look to the seventh section 
of the first article for a most important power given to the President ; 
it is what is commonly called the veto power. 

Every bill which has passed the House and the Senate is pre- 
sented to the President. If he approves and signs it, it becomes a 
law. If he does not approve it, he may return it to the House in 
which it originated, with his objections. It then becomes a law if 
it be passed by two-thirds of each House. He must return it within 

4 



50 THE POLITICAL RIGHTS OF 

ten days (Sundays excepted) after it is presented to him, or it be- 
comes a law without his signature. But if it does not receive his 
signature, and before the ten days expire Congress adjourns, so that 
the President has not the ten days to keep it and then return it, it 
is not a law. 

This veto power was probably copied from the British system, 
and seems to give the President some portion of monarchical power. 
But in the British system it has become wholly obsolete. The 
phrase, " King, Lords, and Commons," as designating the legislative 
power, is meaningless ; the lords and commons having the whole 
power of legislation, and no king has ventured to interpose his neg- 
ative since 1692. This negative of the king would be final, for in 
theory it is absolute. But if a British sovereign should undertake 
at this day to resist the power of the lords and commons by refusing 
his assent to a law which had passed both Houses, it would cause a 
revolution ; while our Presidents have used this power, and some- 
times quite freely. It might seem, therefore, that we, republican 
as we are, have more of a king than Great Britain has. 

But this is not the right way of looking at this matter. The 
negative of the President amounts to just this. If he disapproves 
a bill, he can require a reconsideration of it by the Senate and 
House of Representatives, with any light which he may throw upon 
the objections to the bill, and then a vote of two-thirds. This is all. 
It is a wise precaution against bills which might be passed incon- 
siderately, or under the influence of personal or party passion, by a 
bare majority. This is a power properly placed in the hands of the 
chief magistrate ; and whenever a President believes that a bill is so 
objectionable or so questionable as to call for reconsideration and a 
larger majority, it is his duty to require this by withholding his 
assent. 

As to his preventing a bill from becoming a law by " pocketing 
it," as is the phrase, Congress, which is the master of its own ad- 
journments, can avoid that by continuing their session. It is, how- 
ever, not the right way. Congress should not be compelled to 
remain in session, and, if it is the close of the political year for 
which the representatives are chosen, cannot remain in session. 
The constitution cannot intend that the President in such case 
should prevent a bill from becoming a law by merely keeping it 
from Congress. 

THE VICE-PRESIDENT. 

By the first section of the second article of the constitution it is 
provided that in case of the removal of the President from office, or 



A CITIZEN OF THE UNITED STATES. 51 



his death or inability to discharge the duties of the office, the same 
shall devolve on the Vice-President ; and Congress may provide by 
law for the case of the removal, death, resignation, or inability, both 
of President and Vice-President, declaring what officer shall then 
act as President. Accordingly Congress has provided by law that, 
in such case, the President of the Senate pro tempore, and in case 
there shall be no President of the Senate, then the Speaker of the 
House of Representatives for the time being, shall act as President 
until the disability be removed or a President be elected. 

The Vice-President is President of the Senate, but has no vote, 
unless they be equally divided. This constitutes a difference be- 
tween the Senate and the House. The people choose the President 
of the Senate when they choose the Vice-President of the nation. 
The House of Representatives chooses its own Speaker. The Sen- 
ate also chooses a President pro tempore, who takes the place of the 
Vice-President when he is absent. 

The second article of the constitution provides that no person 
except a natural-born citizen, or a citizen of the United States at 
the time of the adoption of the constitution, shall be eligible as 
President. The twelfth article of amendment provides that no 
person constitutionally ineligible to the office of President shall be 
eligible to that of Vice-President. 



SECTION V. 
THE LEGISLATIVE POWER. 

There can be no doubt that our fathers profited by the experience 
of Great Britain in vesting the legislative functions in two bodies. 
There it grew up by what we call accident ; and, indeed, the early 
history of the English Parliament is somewhat uncertain. Now, 
however, the Parliament is composed of the House of Lords, of 
which the members sit by hereditary tenure (excepting the Scotch 
and Irish lords, who are elected from the peers of each country, 
and are called representative peers), and the House of Commons, 
which consists of members chosen by the votes of those who pos- 
sess the elective franchise. 

We have no lords, and no hereditary tenure of office or place, 
and, it may be hoped, are not likely to have them. And the resem- 
blance of a Senate to a House of Lords, however remote, caused a 
prejudice against this division of the legislative functions between 
two Houses. There was, indeed, great opposition to this ; and some 
wise men doubted its expediency and safety. But better counsels 



S± THE POLITICAL RIGHTS OF 

prevailed. By the Articles of Confederation Congress had consisted 
of only one body; and a part of the feebleness and inadequacy of that 
confederation was attributed to that fact. It was, moreover, seen 
that the requirement of the consent of two distinct bodies supplied 
a useful and necessary protection against hasty and passionate leg- 
islation, not only by the delay it caused, but by the twofold con- 
sideration of a proposed measure. Not only so, but by providing 
that one of the Houses should be chosen in a different way and by 
a different body from the other, any measure would be looked at 
under a different aspect, and a decision be governed by somewhat 
different influences. 

In a republican government, acting under a constitution care- 
fully discriminating between the different functions of government 
and placing them in different hands, there is always danger that 
one of these functionaries will strive to enlarge its own power by 
absorbing the functions of another. The executive must be guarded 
from the temptation and the opportunity of encroaching upon the 
legislature or the judiciary. The legislature must be guarded from 
the temptation and the opportunity of encroaching upon the exec- 
utive or the judiciary. At different times we have heard the cry of 
" Cesarism " raised, which means that there are some among the 
people who suspect the President of aiming at more than republi- 
can, — at imperial power. At other times, watchful men have 
thought they saw a mischievous increase in the pretensions of the 
House of Representatives, and perhaps in the power they assumed 
and exercised. Whether these suspicions were well or ill founded, 
nothing can be better founded than the fear that a body possessing 
legislative powers will always be exposed to the temptation of 
increasing that power, and making themselves sovereign in fact, 
however another name and appearance may be preserved. History 
proves this. The Long Parliament in England voted itself per- 
petual, and for a time was supreme. Holland was formerly gov- 
erned by one representative body, annually elected. They afterwards 
voted themselves from an annually to a septennially elected body ; 
then for life ; and finally exercised the power of filling up all vacant 
offices : and thus the government became an oligarchy and a tyranny, 
although retaining the name of a republic. Think of it as we may, 
this danger will always exist. And there can be no more efficient 
barrier against it than the division of the legislative function, and 
conferring it upon two bodies, each of which will watch the other, 
and detect, expose, and resist any attempted encroachment. 

Then, also, greater stability is given in this way to the course 
of legislation, by obstructing hasty and inconsiderate change, and 
increasing the probability that all actual objections to the proposed 



A CITIZEN OF THE UNITED STATES. 53 

change will come under consideration. And there is also an advan- 
tage in the greater permanence which is gained, if to the members 
of one of these bodies a longer term of office is given, as is the case 
with our Senate. 

There is still another reason. It was deemed desirable to give a 
portion of executive power, or rather a direct check upon the exec- 
utive power, to the legislative body. And this could be done more 
safely and more conveniently if there were two bodies, one smaller 
and more permanent than the other, and by this permanence further 
removed from the passions or prejudices of the hour and the fluctu- 
ations of public opinion ; and to this smaller body was given this 
restraint over the executive. 



SECTION VL 
OF THE SENATE. 

The Senate is composed of two senators from each State ; and 

each senator has one vote. 

It has equal and concurrent power with the House in all the 
common topics of legislation, excepting that the seventh section of 
the first article declares that " all bills for raising revenue shall 
originate in the House of Representatives ; but the Senate may 
propose or concur with amendments, as on other bills." 

This provision is undoubtedly copied from the British Parlia- 
ment. There only the House of Commons can originate money 
bills, as they are called. How this usage, which has now become a 
settled rule, grew up, is not certainly known : but probably from 
the fact that the House of Commons itself began by the calling 
together by the King of persons from the boroughs, cities, and 
counties, when he wanted supplies of money from them. In our 
constitution, this privilege of originating a measure which would 
tax the people was given exclusively to the representatives, because 
that body came directly, and most recently, from the people. Per- 
haps an additional reason was found in the wish to balance the two 
Houses properly. As the Senate must concur with the President 
in making war and peace, and so may be said to have hold of the 
sword of the nation, it was thought well to give to the representa- 
tives the exclusive power to originate money bills, and thus to give 
them a stronger hold upon the nation's purse. In Great Britain, 
the lords can do nothing with a money bill but accept or reject 
it. Our Senate, however, may propose amendments, as in other 
bills. 



54 THE POLITICAL RIGHTS OF 

The senators are not chosen directly by the people of a State, but 
by the legislature ; thus making another difference between them 
and the representatives. The constitution does not prescribe the 
manner in which senators should be chosen ; but, as it was obvi- 
ously desirable that there should be some uniformity in this respect, 
it was provided by a law approved July 25th, 1866, that the legis- 
latures of the several States should elect senators in the following 
manner : Each House, by a viva voce vote of each member present, 
shall name a person for senator, on the second Tuesday after the 
meeting and organization thereof. On the day following, both Houses 
shall meet in assembly. If the same person has received a majority 
of all the votes cast in each House, he shall be declared duly elected 
senator ; if not, the assembly shall proceed to choose a person by a 
viva voce vote, and if that person shall receive a majority of all 
votes of the joint assembly, a majority of the members of each House 
being present, he shall be declared duly elected. If no senator is 
elected on the first day, the joint assembly shall meet and take at 
least one vote each day, until an election is secured. When a 
vacancy shall occur during the session of a legislature, the same 
proceedings shall be held on the second Tuesday after notice of 
such vacancy shall be received. 

The only objection to this method is, that it puts it in the power 
of a majority of either House to prevent an election, by staying 
away from the assembly. The constitution does not declare whether 
the governor of each State must approve the election, as in the 
case of common bills ; but usage seems to have settled that his 
approval is not necessary, and consequently that he cannot invali- 
date the election by withholding his approval. 

Senators are elected for six years ; and are divided, by senatorial 
act, into classes, — one-third, or as nearly that as is practicable, 
going out every two years ; care being taken that the two senators 
from each State shall go out in different years. 

This term, of six years was a compromise between extreme views : 
some of those who framed the constitution wishing them to retain 
office during good behavior, — that is, for life, unless they misbehaved; 
others saw no reason why they should retain office longer than the 
representatives. But the desire to give to the Senate more stability 
and permanence prevailed, and so the term of six years was adopted. 

We have seen that the Senate, if not a sharer in the executive 
power, holds at least a most important check upon it, inasmuch as 
the President can take but few important measures without the 
advice and consent of the Senate. Only with it can he appoint 
ambassadors, consuls, and other public ministers, and judges of the 
Supreme Court. Congress may by law vest the appointment oi 



A CITIZEN OF THE UNITED STATES. 55 



inferior offices as they think proper, — in the President alone, in the 
courts of law. or in the heads of departments ; and have done so to 
some extent. 

The President alone, as the supreme executive of the nation, can 
make treaties with foreign States and powers. But the treaty is not 
valid unless two-thirds of the senators present when the vote is 
taken concur. As the Senate thus seems to partake of the executive 
power, so it seems to partake of the judicial power, in that it sits as 
a supreme court for the trial of impeachments. That topic, however, 
will be treated of in its own section. 

POWER AS TO THEIR OWN MEMBERS. 

Each House is the judge of the elections, returns, and qualifica- 
tions of its own members. This would seem to be a power of judg- 
ment over the right of any person to become a member. Generally, 
if this right comes into question, it is by the petition or remonstrance 
of some other person who claims to be a member, thus giving rise to 
what is called a " contested election." When such a case occurs, it is 
investigated according to the rules of the House to which contestants 
claim to belong. This is usually, or perhaps always, done through a 
committee, who ascertain the facts, and report them to the House, 
which then proceeds to adjudge the question. The power to expel 
a member is given by the clause immediately following. The ques- 
tion may be asked, If either House of Congress exercises either the 
power of admission or the power of expulsion wantonly and wrong- 
fully, what is the remedy? The answer is, There is no remedy. 
Some court, or body, or tribunal, must decide all questions without 
appeal, or there would be no final decision. This final power is 
given to each House upon these questions. A wrongful decision 
would be, in this respect, like the verdict of acquittal by a jury of a 
person charged with crime, and proved beyond all rational question 
to be guilty. If the jury see fit to say he is not guilty, he must go 
free, and the verdict cannot be annulled or questioned. In Massa- 
chusetts, where each house of the legislature has this power, a man 
was expelled for misbehavior from the House of Representatives. 
He carried the case to the Supreme Court ; but that body decided 
that they had no power over the decision of the House. 

SECTION VII. 
THE HOUSE OF REPRESENTATIVES. 

Eepresentatives are chosen by the people of the several States. 
They are apportioned among the States according to the number of 



56 THE POLITICAL RIGHTS OF 

people in each State, and this number is ascertained by the national 
census, of which more will be said presently. The second section of 
the first clause of the constitution provides that the number of rep- 
resentatives shall not exceed one for every thirty thousand ; that an 
enumeration of the people shall be made within three years after the 
first meeting of Congress ; that each State shall have at least one 
representative ; and that, until an enumeration is made, New Hamp- 
shire shall be entitled to three ; Massachusetts, eight ; Rhode Island 
and Providence Plantations, one; Connecticut, five; New York, 
six ; New Jersey, four ; Pennsylvania, eight ; Delaware, one ; Mary- 
land, six ; Virginia, ten ; North Carolina, five ; South Carolina, five ; 
and Georgia, three. Sixty-five in all. The present number is two 
hundred and ninety-two. A table will be given presently, one 
column of which, giving the number of representatives to each State, 
shows that four of the thirty-seven States have but one representa- 
tive each, while New York has thirty-three. 



SECTION VIII. 
PRIVILEGES OF SENATORS AND REPRESENTATIVES. 

FREEDOM FROM ARREST. 

The first paragraph of the sixth section of the first clause of the 

constitution contains a provision which is very easily misunderstood 
as to its ground and purpose. The provision is, that senators and 
representatives shall, in all cases except treason, felony, and breach 
of the peace, be privileged from arrest during their attendance at 
the sessions of their respective Houses, and in going to and returning 
from the same. This provision is undoubtedly imitated from a rule 
of the British Parliament. There it grew up as a personal privilege, 
which, in the days when arrest for debt was allowed and practised 
far more than it is now, was of great value. 

But this provision was not inserted in our constitution on the 
same ground, although it has the same effect. It was intended to 
secure to the nation the services of its servants, when employed in 
attending to its business, from hinderance or interruption from the 
pecuniary claims of individual creditors. It does not relieve the 
members from the necessity of answering in person when they have 
committed some public wrong, for the public interest requires that 
all men should be amenable to the law in such case; but they 
cannot be arrested for debt, nor taken on execution for debt. 



A CITIZEN OF THE UNITED STATES. 57 



NOT TO BE QUESTIONED ELSEWHERE FOR SPEECH IN EITHER 

HOUSE. 

The last clause of this same paragraph provides that they shall 
not be questioned in any other place for any speech or debate in 
either House. This, also, is not intended merely as a personal 
privilege to the members ; but to secure to them, for the public 
good, the most perfect freedom of discussion and debate. Nor is 
it intended to authorize or sanction any abuse of this power, by per- 
mitting members to indulge, without check or fear of punishment, 
in personal vituperation, or in malignant slander, or in giving credit 
and wide diffusion to statements and allegations which they know 
to be false. It is said that members shall not be questioned for 
speech or debate " in any other place." But, then, in that place, 
when such malignity expresses itself, it may be questioned, and 
should be questioned. This is one of those powers which must be 
given ; for the public good imperatively demands it, however liable 
to abuse it may be. Surely the wise framers of our constitution 
were not mistaken in believing that the sense of honor and of duty 
of each House would suffice to prevent any frequent or extreme 
misuse of the right of debate, even if the sense of personal decency 
did not suffice to restrain members. 



SECTION LX. 
POWER TO REGULATE COMMERCE. 

The clause of the constitution which relates to this subject gives 
power to Congress "to regulate commerce with foreign nations, 
and among the several States, and with the Indian tribes." Every 
part of this clause, and almost every word of it, has given rise to 
much discussion, and presented questions not without their difficulty. 
We will first consider 

COMMERCE WITH FOREIGN NATIONS. 

It is obvious that such a power is absolutely necessary to our 
holding any distinct place among the nations. It is probable that 
some commerce existed among different tribes and races from the 
earliest dawn of civilization. With the growth of civilization com- 
merce grew, and in recent times it has reached an enormous extent. 
It seems to be an appointed means of bringing nations together, and 



58 THE POLITICAL RIGHTS OF 

establishing among them a community of interest. But international 
commerce cannot be carried on without rules and laws, which each 
nation must make for itself; but which, when they prevail among 
civilized nations, acquire, by general and universal usage, the force 
of laws. There are many such laws ; and each nation must make 
them for itself, with the modifications or peculiar provisions which 
its own circumstances and interests require. Our nation could not 
have made them but for the power thus given to it by the constitu- 
tion. And it is but reasonable to say that a clause of such vital 
importance should receive a liberal and favorable construction. 

This it has received. It has been held to include not traffic 
merely, or buying and selling, but intercourse between nations, and 
all the forms and instruments of that intercourse. Thus it includes 
navigation laws, and all the laws which relate to shipping and the 
carriage of passengers and of cargoes. It has always been conceded 
that it was within the province of Congress not only to make rules 
for (which is what " regulate " means) existing commerce, but to build 
up our commerce, and give us a full share of the commerce of the 
world. This has been done, and most successfully; and with little 
opposition, because there was little diversity among the several 
States in regard to this matter. It was far otherwise, however, in 
reference to the next provision of this clause, which relates to the 



POWER TO REGULATE COMMERCE AMONG THE STATES. 

Here a distinction has been taken. It has been maintained that 
power to regulate means only power to make rules for ; while to 
many measures proposed at different times the objection has been 
made, that their purpose was not so much to regulate a commerce 
which then existed, or which might exist of itself, as to make rules 
the effect of which would be to create commerce. It is impossible 
to draw a sharp dividing line between these two things. Un- 
doubtedly regulation is one thing and creation another; but it is 
not always easy to say where the one ends and the other begins. 
This controversy is not yet over ; and perhaps it w T ill continue in 
some form for successive generations, as new occasions for reviving 
it occur. It may be said, however, that the sense of the people has 
in a great degree settled down to the conclusion that Congress, 
under the power to regulate commerce, may make proper rules 
respecting the intercourse of the people of different States, and the 
means thereof, so far as they relate to water-ways, to our great lakes, 
to the whole coasting trade of the ocean or the lakes, and to the 
manner of carrying on the same. 



A CITIZEN OF THE UNITED STATES. 59 

But, then, we come upon a question to which our constitution 
gives no direct answer, — What is the power of Congress over, or in 
relation to, instruments of internal domestic commerce, which could 
not by any possibility have entered into the contemplation of Con- 
gress ; that is to say, What is the power of Congress over 

RAILROADS. 

They have now spread their net-work over the whole country, 
and are constantly and everywhere growing in extent and in im- 
portance. If we ask, What is the power of Congress in relation to 
them, we must answer this question by the construction we put on 
the clause of the constitution which gives Congress power " to regu- 
late commerce between the States." For already are these iron 
ways the instruments of a commerce which rivals, to say the least, 
the commerce along our water-ways, and has already superseded a 
more circuitous water-borne commerce in some parts of the country, 
and threatens, or promises, to do so in others. 

Some things seem to be settled by usage and precedent. Con- 
gress can charter railroads, and can help railroads by guaranteeing 
their bonds, and by grants of the public domain. While there have 
been objections, sometimes very urgent objections, to these measures, 
and at this day there are those who hold them to be unconstitu- 
tional, it must be admitted that the objections were mainly to the 
improvidence of the guaranty, or loan of credit, and the extrava- 
gance of the donations of land. These objections have had power 
enough of late to cause Congress to stay its hand, and will un- 
doubtedly cause much more careful consideration and a less liberal 
aid by grant or by guaranty in the future. But we think it practically 
established, that, within reasonable limits, and a due regard to expe- 
diency and safety, Congress may exercise these powers with the 
approval of the people. Indeed, it must be admitted, even by those 
who are loudest in charging Congress with folly and extravagance, 
that the railroads thus far built by means of this assistance are of 
great utility, and that the population which they are causing upon 
what without them would have been a deserted and inaccessible 
wilderness, have added very much to the value of the lands reserved 
by the government. 

But can Congress actually build a railroad with the public 
funds ? This most important question is already raised, and must 
soon be pressed upon Congress and the people. That a thoroughly 
built and equipped railroad, competent to carry from the far interior 
to the seaboard the vast produce of those fertile States, — that such 
a railroad would be of great utility, no one would deny. But, on 



60 THE POLITICAL RIGHTS OF 

the other hand, who will say that it would be of utility enough to 
justify a disregard of the constitution if that distinctly opposes such 
projects? Does it distinctly oppose them ? We cannot but think 
that the clause which empowers Congress to regulate commerce, 
whatever was originally intended by it, may fairly be taken as 
meaning that Congress may provide for, care for, and promote the 
commerce between States, and the instruments of that commerce. 
Whether these be canals or railroads, we should say that Congress 
may construct them, provided always that the only object in con- 
structing them is to provide for, promote, and facilitate the com- 
merce between the States. 

CAN CONGRESS REGULATE THE FREIGHTS ON RAILROADS? 

This question has recently become one of much importance, and 

of no less difficulty. That Congress may regulate the freights on 
railroads which it charters, and that it can affix what terms it will 
on any subsidies or grants it offers to railroads, is certain. The 
true question is this : What right has it, under its power to regulate 
the commerce between the States, to interfere with the charges of 
railroads for carrying produce from one State to another? 

The importance of the question lies in this. Railroads have 
become perfectly indispensable instruments for this internal com- 
merce. Without them it would have been impossible for our sur- 
plus produce to have found its way to the seaboard, at a cost which 
would have permitted merchants in the Atlantic cities to buy it and 
ship it abroad. Therefore the interior of the country undoubtedly 
owes its rapid growth in population and wealth to these railroads. 
But, on the other hand, it is alleged that the railroad companies 
charge excessive freights ; that they have in many instances " wa- 
tered" their stock, — that is, they have greatly increased its par 
value beyond what it actually cost, and then they charge freights 
which shall pay them satisfactory dividends on this nominal value, 
thus laying an intolerable burden on the transport of produce. 
The States which chartered them cannot, or, under the influence of 
the railroad companies, will not, interfere. Can Congress help the 
producers, by requiring the companies to carry their produce at a 
cheaper rate? Certainly not, unless they may do this under the 
clause giving them power to regulate the commerce between the 
States. 

In the first place, this is certainly a commerce between the 
States. Illinois sends her wheat to New York or Boston, sells it 
there, and buys goods there manufactured or imported, which are 
brought to Illinois ; and the price to the consumers is increased by 



A CITIZEN OF THE UNITED STATES. 61 

the high cost of freight. This commerce Congress can " regulate.' 1 
But does that mean that it can interfere between producers and 
carriers, and determine what the one shall pay to the other ? 

There are two objections to this. One is, that this kind of " reg- 
ulation " would seem to interfere too much with private and personal 
business. If the merchants of New York engaged in shipping goods 
to and from Europe complained that the ship-owners asked such 
excessive freight that they could no longer export goods to foreign 
countries, or import them thence, and therefore called on Congress 
to remedy the wrong, and " regulate " this commerce by compelling 
the ships to lower their freights, Congress would probably answer, 
No, we cannot " regulate commerce " in that way. How, then, can 
they be called on to do the same thing as to our internal commerce? 

To this objection this answer might be made : The ocean is the 
great highway of nations, open and free to all ; and competition is 
abundantly able to settle the question between shippers and freight- 
ers in the right way. If freights are so high as to make the ship- 
ping business unusually profitable, more ships will be put on, until 
freights are reduced within reasonable limits. And if they are 
reduced beyond such limits, ships will be taken off, until they rise 
again. The mere course of trade, if left in freedom, being sure to 
adjust these profits, on one side and the other. But it is not so 
with railroads. They are monopolies; for the immense expendi- 
ture of money which they require, and the political power they can 
exert if disposed to, make them monopolies in fact. If left in free- 
dom to work their pleasure, there is no actual competition sufficient 
to counteract their power of directing matters solely with a view to 
their own profit. The power of government must interfere, for the 
plain reason that nothing else will restrain them. 

The other objection to asking Congress for this relief is, that it 
will interfere directly with State rights and privileges and interests; 
and perhaps violate a provision in the ninth section of the first 
article, "that no preference shall be given by any regulation of 
commerce or revenue to the ports of one State over those of an- 
other." It will be exerting a power not expressly given to Congress, 
and therefore reserved to the States themselves, by a provision in 
the constitution itself; and this provision should be made effectual, 
by observing it not in its letter merely, but in its spirit and prin- 
ciple. Now, railroads are chartered by the States; they are the 
creatures of the States ; and to the States alone must belong the 
power of determining what shall be paid to them by those who 
make use of the facilities they offer. 

To these objections the answer might be made, that the power to 
regulate the commerce between the States is expressly given, and also 



62 THE POLITICAL RIGHTS OF 

the power to make all laws necessary and proper for carrying into 
execution all powers given. The railroads are often chartered by 
different States for the express purpose of making a continuous 
railroad crossing many States, each State covering its own territory 
by the charter it gives. It is a very common thing, also, for rail- 
roads which were independently chartered to combine together so 
as to make in fact, and for some purposes in the view of the law, 
but one railroad. These long and continuous railroads are more 
than indispensable instruments of our internal commerce : they are 
its only instruments. They created it ; they alone carry it on ; and 
without them much the largest part of it would have.no existence, 
and would not be possible. What doubt can there be that Con- 
gress may regulate this commerce? Then comes the difficult ques- 
tion, — In what way can they regulate it, except by fixing reasonable 
terms on which it can be carried on? If, as is alleged, injustice and 
oppression now exist, they cannot, in this country, be patiently or 
permanently endured. It is better that the remedy should be 
applied in some orderly, legal, and rational way, — by the States, if 
they will and can ; by Congress, if the States will not or cannot, — 
rather than by an uprising of the people, which might give rise to 
measures that would be neither orderly, legal, nor rational. And as 
to a preference of the ports of one State over those of another, no 
man would defend or propose any measure for the sake of such 
preference. But if some advantage to one over another seemed 
likely to arise indirectly from a measure adopted for the general 
benefit, this could not be deemed a decisive objection to it. 

Such, as well as we can present them in a few words, are these 
questions, and the arguments which may be urged on either side. 
How the questions will be finally decided, it is impossible to predict. 
When this clause was inserted in the constitution, it was undoubtedly 
intended to prevent a State from laying a tax or excise on the pro- 
ductions of any other State, or, by other harassing impediments, 
obstructing the commercial intercourse between them. But whatever 
was intended, there stands the clause, to be fairly and rationally 
interpreted. If, in its original intent, it did not embrace circum- 
stances which could not have been at that time anticipated, it may, 
nevertheless, have manifested a spirit or established a principle 
which may be rationally applied to these new circumstances ; and, 
if so, they should be applied to them. 

Perhaps the just conclusion is, that while Congress must hesitate 
before it undertakes to build railroads, or to prescribe the fires and 
charges on railroads which it did not charter, it ma\, by encour- 
aging the building of railroads by wise and timely assistance, by 
provisions directed against frauds and abuses, and by a system of 



A CITIZEN OF THE UNITED STATES. 63 

prohibitions carefully adjusted to circumstances, exert its power to 
regulate commerce between the States in no unconstitutional way, 
and yet do justice to all parties, while it gives to that commerce 
facilities and safeguards which will greatly promote its growth and 
prosperity. 

INTERNAL IMPROVEMENTS. 

It may be another difficult question, how far Congress may go in 

improving our water-ways by removing obstructions, constr icting 
harbors, and by similar measures. But the prevailing tendency of 
public opinion is towards a liberal construction of the clause in this 
respect. If we go one step further, and ask whether Congress can 
create new water-ways, by building canals by which goods may be 
borne from State to State, and through intermediate States, the 
answer may be still more difficult. Here local interests may come 
into full play. Why should a canal be made from funds which 
belong to the whole nation, when it can benefit only one part, at 
the cost of all the rest ? One answer is, that by these and simi- 
lar means, all parts may be benefited in turn. Another and a better 
answer is, that the gain of any one part of the nation is the gain 
of the whole ; for the whole can be enriched and strengthened only 
as its various parts are, not all at once, but successively, as opportu- 
nity occurs for each. It is only local selfishness which can refuse 
to be glad when the people of another region are benefited. It 
becomes a different question when the objection to a measure is, 
that it will not promote our internal commerce as a whole, but draw 
away from one part what it gives to another. It is, however, obvi- 
ous that all arguments of this kind mainly refer to the expediency 
of the proposed measure, leaving the question whether Congress 
has the right to pass it, aside. So it may be ; but unfortunately, 
while human nature remains what it is now, those who look upon a 
measure as expedient, especially if it be expedient for them, will 
favor the most liberal construction which brings it within the power 
of Congress ; while those whom it hurts will be sure that a just 
construction of the constitution would prevent it. It may be said, 
however, on the whole, that with the prodigious growth of the 
country and of all its various interests, and the springing intc 
existence of new interests never dreamed of when the constitution 
was made and adopted, the conviction has forced itself upon the 
people that, while a loose and unwarranted construction, which 
would pervert the meaning of words and invalidate the limitations 
of the constitution must be avoided, a rational but liberal construe* 
tion should be adopted. 



64 THE POLITICAL RIGHTS OF 



SECTION X. 
TAXES. 

The first words of the eighth section of the first article of the 

constitution, which section enumerates the powers of Congress, are : 
" To lay and collect taxes, duties, imports, and excises." This 
means that Congress may lay all manner of taxes. The most 
general division of taxes is into direct taxes, and indirect taxes. 
A direct tax is taken immediately from income or property. It 
includes a capitation tax, or, as it is more commonly called, a poll- 
tax, and an income tax. An indirect tax makes the owners of the 
articles on which it is laid, pay the tax, without reference to any 
thing but the value or quantity of the article. When these taxes 
are laid on exported or imported goods, they are called duties, or 
customs-duties; and are regulated by a tariff. An indirect tax 
may also be laid upon those who exercise certain trades or occupa- 
tions, and it is then called a license. If it is laid upon certain 
wares or products, as tobacco, spirits, beer, and the like, it is an 
excise. 

All these taxes Congress may lay, and at different times have 
laid. Certain general principles have been deduced from the long 
and wide experience of nations, as those which should govern all 
taxation. They may be stated thus, on high authority. 

1. The subjects or citizens of every State ought to contribute 
towards the support of the government, as nearly as possible in 
proportion to their respective abilities. 

2. The tax which each individual is bound to pay, ought to be 
certain and not arbitrary. The amount, the time, and the manner 
of payment, ought all to be clear and certain to the contributor and 
to everybody. 

3. Every tax ought to be levied at the time and in the manner 
in which it is most likely to be convenient for the contributor. 

The second section of the first article provides that " represent- 
atives and direct taxes shall be apportioned among the several 
States according to their respective numbers, which shall be deter- 
mined by adding to the whole number of free persons, including 
those bound to service for a term of years, and excluding Indians 
not taxed, three-fifths of all other persons" " All other persons " 
meant slaves, a word nowhere appearing in the constitution. This 
provision was perhaps as wise and fair a compromise of existing 
views and claims, as could then be made. To say that they were 
persons as much as other persons, would have required that they 
should all be counted in among those to be represented. This was 



A CITIZEN OF THE UNITED STATES. 65 

not fair, as they did not vote, and such a rule would have added to 
the political powers of the whites, merely because men who could 
not vote were mingled with them. But if they were not counted 
at all, this seemed unfair, because after all they were persons as well 
as property. So the compromise was made. The States which 
had few or no slaves being contented that the States which had 
many slaves should have more than the share of political power 
which belonged to their number of voters, because an equal excess 
of taxation was cast upon them. The reason that bargain was 
satisfactory to the non-slaveholding States was, that at that time it 
was believed that the revenue of the country would mainly, if not 
wholly, arise from direct taxes. This was an enormous mistake. 
But it would be unreasonable to charge the men of that day with 
lack of wisdom, because they did not anticipate the growth of our 
commerce and of our national resources. Congress has, at different 
times, and in great emergencies, as in war, imposed direct taxes. 
But it took them off as soon as possible ; and nearly all the national 
revenue has been and is now raised by indirect taxes, and princi- 
pally customs duties. 

In laying these duties the great question has been, is now, and 
is likely to be for ages to come, Shall these duties be laid for reve- 
nue, or for the protection and promotion of domestic manufactures ? 
That the duties may be laid for protection is nowhere expressly 
enacted in the constitution ; but the whole clause respecting duties 
is this : " to lay and collect taxes, duties, imposts, and excises, to 
pay the debts and provide for the common defence and general 
welfare of the United States." It has been very much disputed as 
to what is the effect of the last part of this clause. What may be 
termed a simple and common-sense view of this question would be, 
that this power to impose taxes is given for the purpose of paying 
the debts of the nation and also providing for its general welfare. 

Instructive evidence as to how it was understood at or very near 
the time of the adoption of the constitution, may be found in the 
preamble of the second act passed by Congress, which was enacted 
in 1789. It runs thus : "Whereas it is necessary for the support of 
government, for the discharge of the debts of the United States, 
and the encouragement and protection of manufactures, that duties 
be laid on goods, wares, and merchandise imported, — Be it enacted," 
&c. It would seem too late to lay much stress upon the question 
whether Congress, in laying duties, could pay whatever it deemed 
a due regard to the encouragement of domestic manufactures. 
Whether they should do so, and what this due regard would be, 
must be argued on expediency and equal justice to all the parts and 
all the interests of the country. 

5 



66 THE POLITICAL RIGHTS OF 

The main arguments of those who object to any special regard 
to protection, may be said to be these. Manufactures must to a 
considerable extent be localized ; in one region cotton goods will be 
made ; in another manufactures of iron will prevail. Climate, cost 
and supply of labor, natural facilities of various kinds, will operate ; 
and the necessary effect will be that the people of one region will 
be the principal manufacturers of one or another kind of goods, 
while the people of another region are mainly employed in manu- 
facturing some other kind of goods, or in producing food, or articles 
for export. Hence any laws which operate exclusively in favor of 
a certain class of manufacturers are partial, and therefore unjust. 
Moreover, taking the whole country together, such laws necessarily 
produce a loss instead of a gain. Any interference with the natural 
course of trade or business of any kind must be mischievous, for 
the plain reason that this natural course of "let alone" is sure to 
result in the people of every region, and, indeed, of every country, 
engaging themselves in the work which, upon the whole, they can 
do best ; and this work will be at once most profitable for them, and 
most useful to all. If the labor or enterprise of any part of the 
people is diverted from this natural course, the large gains made by 
a few will seem to indicate a general prosperity ; while, in fact, these 
gains will be made at an exactly equal loss, divided among a far 
greater number. 

For example, a plough, or so many axes or shovels, made in 
England, where labor is very cheap, may be bought there, and, if 
there be no duty, imported and sold here for, we will suppose, five 
dollars. They cannot be made and sold here, where labor is dear, for 
less than six dollars. Let a duty of forty per cent be laid, and the 
English goods, which would cost here five dollars, will now cost 
forty per cent, or two dollars, more, which will bring them to seven 
dollars. But the manufacturers can make them and sell them for 
six dollars. If they sell them for that price, or even for six and 
a half dollars, the importation must cease, and the manufacturers 
make great profits, and all the people in the land who use ploughs, 
axes, or shovels must pay this extra dollar or two, and a part of it 
goes to make up the profit of the manufacturer. The same reasoning 
applies to the manufacture of articles of clothing, or other goods of 
general use, if the importation of cheaper goods is prevented or 
checked, and dear goods made at home substituted for cheaper goods 
made abroad. 

The answer to all this, made by those who are in favor of pro- 
tection to domestic industry, is substantially this. The doctrine ot 
free trade and free manufactures might work well for all if all nations 
practised it. But, in fact, other nations do not. There is not a 



A CITIZEN OF THE UNITED STATES. 67 

country in Christendom that has not laid more or less restriction 
upon traffic, for the encouragement of its own productions ; and we 
must do the like, in self-defence, if we would not fall behind other 
countries. Moreover, there is a fallacy in supposing that a duty 
upon manufactured goods always increases the price of them in pro- 
portion. At the beginning it may have much effect in that direc- 
tion. But soon there comes competition. Ingenuity is taxed to 
improve machinery and overcome the advantage they have abroad 
in cheap labor ; and hence it is that all our manufacturing machines 
and processes are in a condition of continual improvement. Large 
amounts of capital are thrown into the business, so as to secure the 
advantage of buying materials when and where they are cheapest, 
and of making them up at the least possible cost. The effect of all 
this is, that prices, instead of being advanced, are, it is said, lessened, 
and manufactured goods of general necessity and use are bought in 
this country for less than they cost before duties were laid on them. 
Not only so, but we are able to export largely at a fair profit; and 
what proves that we have taken our place as a manufacturing nation, 
and can manufacture our goods as cheaply as other nations, is, that 
we send our manufactures, especially of cotton and iron, to foreign 
markets, and can sell these goods for a less price than even English 
goods of the same quality are sold for. Moreover, immense amounts 
of labor are employed, at good wages; and those who are thus 
withdrawn from the general labor market make its value greater 
everywhere, and the whole labor of the country is better paid. 

Most of all, and as the greatest advantage of all, an immense 
home market is opened for home produce. If the great army of 
workers now employed in manufactures were added to those now 
employed in agriculture, there would be a great over-production of 
farm and field produce, and the glut in the home market would, on 
the one hand, lessen the production of meat and bread, and, on the 
other hand, would send the surplus abroad at low prices ; that is to 
say, the loss of our home market would make farming far less profit- 
able, and would arrest the rapid growth of our interior. Because 
it is the protection heretofore given to manufacturing industry that 
has caused the universal prosperity of the country, by supplying all 
who produce food with clothing and other necessaries at fair prices, 
while it secures to them fair prices for the food they produce. 

Such are the arguments on the one side and the other. Perhaps 
there is now a very general assent to what may be regarded as a fair 
compromise between these extremes. It is, that all duties on im- 
ported goods should be laid, in the first place, for revenue, and 
should never be greater than the revenue requires. But, in the 
second place, they should be adjusted (so far as revenue purposes 



68 THE POLITICAL RIGHTS OF 

permit) in such a way as to give the greatest encouragement and 
assistance to domestic industries, the great difficulty still being, and 
likely to be hereafter, in making this adjustment; the free-trade 
party wishing it made so as to obstruct commerce in favor of home 
manufacture as little as possible, and the protectionists asking that 
enough regard should be paid to domestic manufacture to prevent 
the destruction of existing industries, and to continue in force a 
system which has, in their judgment, immensely promoted our 
national prosperity. 

We have seen, by a reference to the second act which Congress 
ever passed, that at the beginning of our government there was a 
disposition to encourage domestic manufactures. It may be said 
that this has, on the whole, prevailed to the present day, although 
with much fluctuation; the principles of free trade being at one 
time prevalent, and then those of protection coming into the ascend- 
ant. As the subject is of great importance and of universal interest, 
we give our readers a brief statement, gathered from the latest 
sources of information, of the present condition of our principal 
industries: — 

Iron. — The greatest industry of all is that of iron, which has reached 
immense proportions, especially in Pennsylvania, Ohio, New York, and 
Michigan. There are iron establishments in every State of the Union, with 
the solitary exception of Florida, and in every territory except Utah. 
About $200,000,000 of capital are employed, and the products reach 
$325,000,000. The manufacture of iron gives work to 140,000 hands. 
Pennsylvania is altogether at the head in this industry, her factories 
numbering very nearly 1,000*, and her products being not far from 
$122,000,000. But the most wonderful feature of iron manufacture is its 
spread westward. Michigan, Indiana, Illinois, and Ohio have between them 
about 860 establishments ; while in the Far West — in Minnesota, Iowa, Wis- 
consin, and even in California and Nevada — they are becoming numerous 
and important. The progress of iron manufacture during the past twenty 
years may be estimated by the fact that while in 1870 the factories num- 
bered 3,700, and had a capital of $200,000,000, in 1850 there were only 
2,364, with a capital of about $46,000,000. 

Cotton Goods. — Of cotton factories there are 819, distributed through 
a large number of States, but mainly in Massachusetts, Pennsylvania, and 
Rhode Island (which small State has no less than 140), with an aggregate 
capital of $133,000,000, a force of 130,000 hands, and products of the value 
of $168,000,000 yearly. These are exclusive of manufactories of cotton 
batting and wadding, of which there are 27, with a capital of $276,000, 
and of cotton thread, twine, and yarns, of which there are 123, with a 
capital of $7,400,000, and an annual product of $8,700,000. It is worthy 
of remark that within the past twenty years cotton mills have spread with 
considerable rapidity through the South, and are to be found not only in 



A CITIZEN OF THE UNITED STATES. 69 

the upper tier of those States, — North Carolina, Virginia, Tennessee, — 
but even in Alabama, where there are ten; Georgia, where there are twenty- 
five; Louisiana, and Texas. It is highly probable that cotton manufactures 
are destined to multiply in the South, on the very field where the raw 
material is grown, — a promise which opens new prospects of prosperity 
for that section, and of cheaper goods for the whole country. 

Woollen Goods. — There are in this country nearly 2,000 woollen 
factories, principally in the States of Pennsylvania, Massachusetts, New 
York, Ohio, Indiana, and Connecticut, with an aggregate capital of nearly 
$100,000,000, employing 77,000 hands, and producing $150,000,000 worth 
of goods. These factories do not include wool-carding and cloth-dressing 
establishments, of which there are about 1,000. 

Worsted Goods. — This industry has almost wholly grown up within 
the past thirteen years. In 1860 there were but three worsted factories in 
the country, two of which were in Massachusetts, and one in New Hamp- 
shire; in 1870 there were over one hundred, Pennsylvania having thirty- 
one, Rhode Island eleven, and Massachusetts thirty-five; and the aggregate 
capital employed being some $10,000,000, giving a product of more than 
$22,000,000 annually. 

Carpets. — In the manufacture of carpets there are 250 factories, with 
$13,000,000 of capital, and $22,000,000 of annual production, — Pennsyl- 
vania almost monopolizing this industry, as she has nearly 200 of these 
factories, and produces about $10,000,000 annually. 

Silk Goods. — There are 90 silk factories in the United States, em- 
ploying about 7,000 hands, with a capital of $6,500,000, and an annual 
product of more than $12,000,000. This includes silk goods, ribbons, 
machine and spool silk, and silk thread. New Jersey is the leading State 
in this industry, having thirty factories to twenty-three in Connecticut, 
fourteen in New York, and ten in Pennsylvania. 

Cutlery Goods. — As yet there are only about 182 cutlery establish- 
ments, with an aggregate capital of $4,000,000, and an annual production 
of $5,500,000. But this industry has perceptibly grown, and is still grow- 
ing, — Connecticut, New York, and Pennsylvania, being the leading States 
in this enterprise. There are but four cutlery establishments in the South, 
three of which are in Missouri, and one in Louisiana. 

Boots and Shoes. — This manufacture is one of the very largest and 
most important in the country, there being more than 3,000 factories, of 
which more than 1,000 are centred in Massachusetts, the next highest State 
being New York, with something over 300. In this manufacture about 
$40,000,000 of capital are employed, with a product of not far from 
$150,000,000. The West is looking up in this industry, for there is a large 
number of factories in successful operation in Missouri, Wisconsin, Illinois, 
and Iowa. At least 100,000 hands are employed in the making of boots 
and shoes. 



70 THE POLITICAL RIGHTS OF 



Wine. — One of the most interesting of comparatively recent industries 
is the growth of grapes and the manufacture of wine. Some of the Ohio, 
Missouri, Virginia, and Californian valleys are found to be well adapted to 
the growth of vineyards; and there are now over 400 wine-making estab- 
lishments in the country, producing champagnes, hocks, ports, sherries, 
and sweet dessert wines. Of these Missouri has about 200, employing a 
capital of $700,000, and producing about $1,000,000 annually; California 
has 150; Ohio, 40; New York, 10; and Illinois, 5. The total of the various 
kinds produced is about $2,500,000. 

Malt Liquors. — These are made in something over 2,000 breweries, 
which are spread completely over the territory of the Union; the largest 
number being in New York, Pennsylvania, Ohio, Wisconsin, Michigan, 
Illinois, Iowa, Indiana, and Missouri, — States, let it be observed, where 
the German element of the population is most thickly gathered. 

Agricultural Implements. — The capital employed in the manu- 
facture of agricultural implements has increased, in twenty years, from 
$3,500,000 to $35,000,000, and the products from $7,000,000 to $52,000,000. 
Since 1860 this industry has somewhat more than doubled. 

Increase of Manufactures. — The value of manufactures — in which 
are included fisheries, quarrying, and mining — increased in the ten years 
between 1860 and 1870, 108 per cent, this estimate being the actual in- 
crease, after deducting the enhancement of prices by the issue of paper 
currency. The nominal increase was from nearly $2,000,000,000 in 1860 
to $4,002,000,000 in 1870. That is to say, that the United States produced 
over twice as much manufactured goods, in money value, five years after 
the close of the war as they did in the year before the war broke out. The 
total number of manufacturing establishments in the country, which in 
1860 were 140,433, were, in 1870, 252,148. The States which rank highest 
as manufacturing centres are in the following order : Pennsylvania, which 
has 37,200; New York, which has 36,206; Ohio, which has 22,773; Massa- 
chusetts, which has 13,212; Illinois, which has 12,597; Indiana, which has 
11,847; Missouri, which has 11,871; and Michigan, which has 9,455. The 
industrial empire will be seen to be taking its way westward. And this 
is a comparatively recent movement; for while Massachusetts, twenty 
years ago, had about 9,000 establishments, Illinois, which has now nearly 
caught up with her (as above), only had 3,000; Indiana, only 4,000; and 
Michigan, only 2,000. In twenty years Michigan has increased her manu- 
factories fivefold, Illinois more than fourfold, and Missouri fivefold, while 
Massachusetts has only increased hers one-third. 



A CITIZEN OF THE UNITED STATES. 71 



SECTION XL 
ON THE JUDICIARY. 

In preceding chapters we have considered the execntive power 

and the legislative power. We have now to treat of the judicial 
power. 

Our national constitution is, as has been said, a new thing upon 
the earth, in many respects ; in no one more important or more 
remarkable than in the distinction it makes between the three great 
essential powers of all government. It clearly defines each of 
them. It separates one from the other, making them independent 
of each other, and yet establishing between them an indissoluble 
connection by unity of service and accordance of action, so that 
they work together, each in its own way, but all concurring in the 
preservation of our national rights and national existence, and of 
the personal and property rights of every individual in the nation. 
One body carries the law into effect ; another body makes it; a 
third body determines what is law, and construes and applies the 
law, and keeps the other two from wandering outside the path of 
power and of duty assigned to them. 

This distinction between the executive, the legislative, and the 
judicial functions, grew up in England, in some slight degree, but 
from no definite design. Our fathers recognized it, and carefully 
provided for it, as the surest safeguard of political rights ; for the 
obvious reason that if the executive can make what laws he will, 
or construe and apply them as he will, there is an obvious despot- 
ism ; and if any other body in the States can unite these functions, 
that body becomes a despotic executive. Of these bodies, nothing 
is now more universally admitted than that it is the function of the 
judiciary to judge and decide whether a law be constitutional, and 
in that case valid, or unconstitutional, and therefore of no force 
whatever ; and that it is not merely their certain right, but as cer- 
tainly their duty, to do so, when the question is properly before them. 

This function of the judicial power was wholly unknown before ; 
for how could a judiciary be charged with the construction and 
preservation of a constitution, before such a thing as a written 
constitution existed ? No wonder that our fathers scarcely knew 
how great a thing they had done in taking this step. No wonder 
that our judicial bodies themselves did not, in the first years of our 
national existence, know certainly that this important power was 
entrusted to them, or see clearly their duty in relation to it. To 
prove this, let me say that in 1792 a pension law was passed, 



THE POLITICAL RIGHTS OF 



requiring the judges of the Circuit Courts of the United States to 
carry the same into effect. The question soon came before many 
of these courts, whether this act was constitutional ; and they all 
decided at once that it was unconstitutional, because it imposed 
upon judges duties which certainly were not judicial. But the 
judges for the district of New York, — Jay, Cushing, and Duane, 
— while clear that the law was unconstitutional, held that "from 
their desire to manifest their high respect for the national legis- 
lature," they would consider that the law had only appointed as 
commissioners the persons who happened then to be judges, inad- 
vertently describing them by their official names instead of theii 
personal names; and accordingly they undertook the duties of 
commissioners. The court for the district of Pennsylvania (Wilson, 
Blair, and Peters), and that for North Carolina (Iredell and Sit- 
greaves), went so much further as to refuse to proceed under the 
act; but each court wrote a long letter to the President, apologizing, 
almost humbly, for their decision, the Pennsylvania court calling it 
" a painful occasion," and the North Carolina court speaking of the 
"lamentable difference of opinion." And so things went on until 
1803, when, in Marbury's case, so called, Chief Justice Marshall con- 
sidered the question in all its bearings ; and, with a force and clear- 
ness which I cannot characterize otherwise than by calling them 
most admirable, settled the question, as I hope, for all time. What 
he considered this power of the judicial body can best be told in his 
own emphatic conclusion : " This is of the very essence of judicial 
duty." 

Very far are we, however, from understanding now the exact 
limitations of judicial duty in this respect ; or, in general, the nature 
and force of what Jeremy Bentham called "judge-made law." It 
may well be hoped that as the nation grows older it will grow 
wiser, and that some questions will hereafter be settled to which no 
certain answer can now be made. But already, I think, there are 
three rules on this subject which may be considered as established. 

One, that the court cannot judicially inquire into any law, unless 
it be directly involved in some case properly brought before them 
by the parties in interest. (I have nothing to say here of instances 
in which a State constitution authorizes the executive or legislature 
to ask the opinion of the judges.) 

Secondly, if they consider any law or rule or principle, which 
is not so involved in the case before them that their consideration 
of it is necessary for their judgment, they go just so far beyond 
their judicial duty, and can utter no word of judicial power. They 
may make essays, or utter apothegms of much interest and value as 
the sayings of wise meii ; but what they say is not judicial any 



A CITIZEN OF THE UNITED STATES. 73 

further than it is distinctly involved in their judgment, and there- 
fore it is not authoritative. It may be a saying (dictum), but it is 
not a decision. 

Thirdly, whatever they adjudge and determine within these 
limits may be reversed or qualified by the same judges or their 
successors, or by the legislature if the constitution permits, but, 
until so reversed or qualified, it has the force of law. 

Not only from remarks made where we might expect party feel- 
ings would obscure judgment, but from words sometimes uttered in 
high places, we have too much reason to fear that the great duty of 
the judiciary as the expounder and defender of the constitution is 
not so clearly seen, or so unreservedly acknowledged, as from its 
vast importance it ought to be. 

Our government is established and determined by the constitu- 
tion. This the people made, in the exercise of their sovereign will. 
And the one certain thing about it is, that it is a government of 
limited powers. Not only is the whole government limited, but 
every department of it is limited within clearly defined boundaries. 
It is absurd to say that the constitution can remain in force, or the 
government continue to be what the constitution makes it, if any 
one of its departments may at its own pleasure transcend the 
limits imposed upon it. 

The constitution is the law of the law. If Congress pass a bill 
of attainder, under which a citizen may be deprived* of life or prop- 
erty without trial ; or, if Congress pass a law that on a trial for 
treason the defendant may be convicted on the evidence of one 
witness when the constitution requires two, — how can the accused 
obtain relief, or, what is far more important, how can the constitu- 
tion itself obtain relief and an adequate defence against this inva- 
sion, except by the interference of that body whose function it is to 
construe and apply all law. That body, the judiciary, will look to 
the constitution for direction what to do. They read there that 
Congress has not the power to pass a bill of attainder. Must they 
not say at once that this bill of attainder was not passed by compe- 
tent authority, and therefore is not law? The judiciary must have, 
can have, no guide but the law. But the constitution is the supreme 
law of the land ; it is the law of the law. By the very terms of their 
constitution (sixth article), the people declare that the constitution 
is the supreme law, and then laws made in pursuance of the con- 
stitution are valid. 

Only these laws are laws. The judiciary have no more right to 
regard as a law one not made in pursuance of the constitution, than 
they would have to regard as law an order sent to them by the 
President, or by the general in command of the army. And who 



74 THE POLITICAL RIGHTS OF 

are to determine whether the supposed laws be made in pursuance 
of the constitution ? Certainly not the President ; for, if we give 
him this power, he becomes an irresponsible despot. Certainly not 
Congress ; for it is they who made the law. Obviously it must be 
the judiciary; for there is no other body which can do it for them: 
and to construe a law, and apply it to the case before them, is pre- 
cisely what they were appointed to do. And how can it be said 
that it is their business to examine into a law, and declare its mean- 
ing and force, but they must not examine into the question whether 
it be a law at all ? 

Wisely has the constitution deposited this power in the hands of 
the judiciary. First, because this power cannot make them despotic 
or tyrannical, inasmuch as they have no power to make law, or to 
execute law. Their power in this matter is only negative. They can 
say that such a law is a law only in form and appearance ; but is not 
a law in fact and in force. But they cannot say, That law which 
Congress made is not a law ; but this is law which we make, instead 
of the law that Congress made. They cannot make void that law 
because they do not like it ; they can only say that it is void, be- 
cause not made in pursuance of the constitution. 

Secondly, because the judiciary consists of a body of men selected 
for their knowledge of law, trained to understand the law, and sep- 
arated from all other business in life that they might devote them- 
selves to this one work without a divided mind, and undisturbed 
by other pursuits and interests. For so, at least, they ought to be 
selected, and ought to live. 

It was said at Washington, on a recent interesting and exciting 
occasion, " Why should Congress yield such deference to the opinion 
of those men, sitting as a court? There are amongst us, and in 
either House, as good lawyers as sit upon that bench. Why may 
not they be trusted ? " But all the members of Congress are not 
lawyers ; and it is well they are not, for all interests and all modes 
and forms of opinion and judgment should be represented there, 
and have due influence there. And all the lawyers there are not 
sound and learned lawyers, for they were not selected by any such 
standard, or for such reasons exclusively. But the justices of the 
Supreme Court were so selected ; on no other grounds in theory, 
and on these grounds mainly in practice. And being so selected, 
constantly busied in the work of expounding and applying law, 
sequestered mainly, if not altogether, from other pursuits, and unable 
to forget, even if they would, the great duties which are always 
before them, how can it be doubted that we have here a body of 
men, so selected, organized, and employed as to develop to the utmost 
their fitness for the great duty of expounding, protecting, and pre- 



A CITIZEN OF THE UNITED STATES. 75 

serving the constitution ; and secured, as far as men can be, from the 
influences most likely to distract and impair their discharge of that 
duty? 

Therefore it is that the constitution most wisely makes the judi- 
ciary independent. In all other governments the judicial power 
is but a part of the exercise of the executive power. Once, the 
king sat in the gate of his court-yard, and administered justice to all 
who came. That was a long time ago. But at this day the per- 
sonal sovereign, wherever there is one, appoints the judges ; and they 
are his ministers, and he does justice through them. Here, our sover- 
eign, the people, through their servants, selects them, and then they 
are amenable to the people alone; being just as independent of the 
executive and legislative bodies, as these bodies are of the judiciary. 

Our constitution, and our system of government under the con- 
stitution, may be compared to an arch, so skilfully, so well adjusted 
in all its parts, that it is idle to call one of its members more essential 
to its existence and its strength than another. But if to any of the 
stones which compose it we would give the name of Keystone, we 
must give it to the judiciary. Whatever strengthens that stone 
strengthens the whole ; whatever weakens it weakens the whole ; 
take it away, and the whole would fall into ruin. 

There are but two ways which we can think of by which its 
functions could be made still more useful, and by which it could be 
still better protected from harmful influences. One would be this : 
to introduce a principle known to some of the States, — in Massa- 
chusetts, for example, it has worked excellently, — by which the 
President, or either body of Congress, might call for the judgment 
of the court upon the constitutionality of any proposed measure. 
Instances have already occurred in our history in which such a 
practice might have been eminently useful. 

The other is this. Provide, by an amendment of the constitu- 
tion, if that be necessary, that a person appointed a justice of the 
Supreme Court, and accepting that office, should be thereafter un- 
able to hold any other office in that court or elsewhere, either by 
the appointment of the executive or by an election of the people. 
Already there is assigned to that office a competent salary and a 
retiring pension, which may relieve the holder from pecuniary 
anxiety. Let them be increased, if need be, that the emolument 
may co-operate with the honor of the place to call the ablest men 
in the country into the service of the country. Then let the rule 
above stated be established, and the strongest, perhaps the last, 
temptation to yield to the corrupting influence of political ambi- 
tion would be taken away. 



76 THE POLITICAL RIGHTS OF 



SECTION XII. 
OF IMPEACHMENT. 

Before treating of Congress, as composed of the two Houses act- 
ing concurrently, the subject of impeachment may be considered ; 
for in this both Houses act indeed, but in totally different ways. 

The House of Representatives alone has the power of impeach- 
ment. Acting as the grand inquest of the nation, it finds articles of 
impeachment, which are substantially an indictment; and, by a com- 
mittee, presents them to the Senate, which alone can try the case. 

The whole system is imitated, and on some important points 
closely imitated, from the practice of England. The framers of the 
constitution found it a very difficult matter to deal with aright. 
They were much divided in opinion about it ; and all knew that any 
system they could adopt would be open to objections ; and they 
finally concluded on copying the English practice, so far as this ap- 
proved itself to their judgment, as on the whole adapted to the 
purpose. 

Many preferred that the Supreme Judicial Court should try such 
cases. But to this it was objected that one or more of their own 
number might be the subject of impeachment, and that all of them 
had been appointed by a President, and some of them, perhaps, by 
the President who was himself impeached. Then, great difficulties 
were found in giving this function to a special court created for the 
purpose. And, on the whole, the Senate was selected. Experience 
has thus far confirmed the wisdom of the choice. 

The Chief Justice of the Supreme Court presides. The articles 
are presented and the trial conducted on the part of the House by 
managers chosen from among the members. The accused is defended 
by counsel ; and the trial proceeds and evidence is offered on the one 
side and the other, according to the rules of the common law and 
the practice of courts and parliamentary usage. At the close of the 
evidence and arguments, each senator is called upon to say whether 
the defendant "is guilty or not guilty of a high crime and misde- 
meanor, as charged in the first article of impeachment. " And the 
same question is put to each senator as to each article. Two-thirds 
of the Senate must answer that he is guilty upon some one or other 
of the articles, or the defendant is entitled to an acquittal. 

If he is convicted upon all or upon any one or more of the articles, 
the Senate then proceeds to declare the proper punishment. There 
are two clauses in the constitution which relate to the punishment 
of one found guilty under an impeachment. One provides that the 



A CITIZEN OF THE UNITED STATES. 77 

guilty party " shall be removed from office." The other provides 
that the judgment " shall not extend further than a removal from 
office, and a disqualification to hold any office of honor, trust, or 
profit under the United States." The settled construction of these 
clauses appears to be that the guilty party must be removed from 
office, and may be disqualified from holding office in future, if the 
Senate in its discretion thinks proper to inflict this additional 
punishment. The constitution both wisely and mercifully affixes 
these limits to this judgment. In England, political offenders, when 
impeached by the commons and found guilty by the Lords, have 
been sentenced to death by them. But the framers of the con- 
stitution regarded impeachment as mainly, if not altogether, a method 
of securing the community against the continuance in office, or the 
return to office, of bad men. 

Hence the clause in the constitution which limits the punishment 
to be inflicted by the Senate closes with this provision : " But the 
party convicted shall nevertheless be liable and subject to indict- 
ment, trial, judgment, and punishment, according to law." Thus, 
if a President were impeached for treason, found guilty, and removed 
from office, he might afterwards be indicted in a court of law, capi- 
tally convicted, and put to death. 

WHO MAY BE IMPEACHED. 

Some question has been made of this. The fourth section of the 

second article says : " The President, Vice-President, and all civil 
officers of the United States, shall," &c. Not all other civil officers, 
but all civil officers. The best construction, and that generally ad- 
mitted, is, all officers of the United States appointed under the 
national government, whether executive or judicial, and in high or 
low office, are subject to impeachment. The only apparent excep- 
tion to this is in the case of the Senate. It seems to be settled that 
no senator is subject to impeachment. Various reasons are given 
for this. It is enough to say that the Senate might expel a member 
by a two-thirds vote, and could do no more if impeached and found 
guilty, except to add, if they saw fit, the further punishment of dis- 
qualification for office. It has been said, but not determined, that, 
by a similar exception, a member of the House of Representatives 
cannot be impeached. This exception may rest on the power of 
expulsion which the House possesses, and also, both in respect to 
the Senate and the House, on the distinction that they are not 
" civil officers of the United States," inasmuch as they hold office 
from the people of the States, and not from or under the national 
government. 



78 THE POLITICAL RIGHTS OF 

FOR WHAT OFFENCES AN OFFICER MAT BE IMPEACHED. 

The constitution says : " treason, bribery, or other high crimes 

and misdemeanors." This phrase, " high crimes and misdemeanors," 
is a technical legal phrase, and may be said to be sufficiently defined 
by the common law. Congress might undoubtedly define it by law, 
but has never done so. An impeachment by the House, and a recep- 
tion and trial of the impeachment by the Senate, would be, in another 
form, a declaration of the views of Congress in that particular case, 
and might have the force of a precedent, but not of a law. 

The offence charged must be not an offence only, but a high 
crime and misdemeanor. What this is must be left for the House 
as accusers, and the Senate as triers, to determine. If they make a 
mistake, there seems no way to rectify it ; for the case of impeach- 
ment is expressly excepted from the President's power of pardon. 
It cannot be doubted that the purpose of this great and exceptional 
power was to remove bad men from important offices, where they 
might do much harm. And there is little reason to fear that it will 
be prostituted to punish lesser or meaner wrong-doing. 



SECTION XIII. 
THE WAR POWER. 

Congress has power "to declare war, grant letters of marque 
and reprisal, and make rules concerning captures on land and 
water." 

The power to declare war obviously belongs of necessity to 
national sovereignty. There was much discussion among the fram- 
ers of the constitution as to where this power should be lodged. 
In monarchical nations it belongs to the monarch alone ; and there 
were some who thought the President with the Senate should have 
the power. But it was wisely concluded to give that power only to 
Congress. 

Congress may declare war generally, as it did in 1812, when it 
was enacted, in the manner in which all laws are passed, that "war 
be and hereby is declared to exist between the United Kingdom of 
Great Britain and the dependencies thereof, and the United States 
of America and their territories." But Congress may also declare 
what may be called a qualified, partial, or imperfect war, as it did in 
the year 1798 with the kingdom of France ; and divers laws were 
enacted concerning the same. 

The issuing of letters of marque means the giving authority to 
parties injured by a foreign nation to seize the property or the per- 



A CITIZEN OF THE UNITED STATES. 79 

sons of subjects of the State which did the injury, until satisfaction 
be received. Such authority was formerly given to the owners of 
private ships who had sustained' injury from a foreign nation ; and 
it authorized them to take prizes by way of indemnity. These 
were called special letters of marque and reprisal. Now, however, 
letters of marque issue only in time of war. They are a commis- 
sion from the President to owners of private ships to make what 
prizes they can, and where they can. 

This business of privateering is now carried on by all nations in 
time of war. But of late years there have been many strong efforts 
to abolish it, and to put private property on the sea on the same 
footing with private property on land, which the law of nations 
protects from destruction or injury, and especially from capture, unless 
these are necessary for purposes of war. Hitherto these efforts have 
been ineffectual ; but it may be hoped that in time, as nations grow 
more civilized and international law becomes wiser and more hu- 
mane, these efforts will be successful. 

As Congress may declare war, so it has power " to raise and 
support armies ; " but to this power is added a provision, which is a 
most important check upon the abuse of this power : " but no appro- 
priation of money to that use shall be for a longer term than two 
years." 

Under the general authority given to Congress to pass laws nec- 
essary and proper for carrying the provisions of the constitution 
into effect, Congress has passed many laws regulating prizes, and 
other matters of like kind. In general, a captured vessel must be 
brought into one of our own ports, and proceedings commenced 
before a court of competent jurisdiction, which is nearly always a 
Court of Admiralty. If the vessel is adjudged to have been unlaw- 
fully captured, she is surrendered to her owners. If lawfully cap- 
tured, she is declared to be and is condemned as a prize. Ship and 
cargo are then sold, and the money divided among the captors as 
the laws of Congress direct. 

ARTICLES OF WAR. 

These are statutes passed from time to time by Congress regu- 
lating with considerable minuteness all military affairs. Every offi- 
cer in the army is required to subscribe to them before he enters 
upon his duties ; this subscription signifying not only an acknowl- 
edgment of notice, but a promise to obey them. 

These articles are more than a hundred in number. They pro- 
hibit embezzlement of public property, cowardice before the enemy ; 
drunkenness, oaths, and profanity ; offering violence or disrespect in 



80 THE POLITICAL RIGHTS OF 

any way to a superior officer, absence from parade, aiding the enemy 
or corresponding with him, making known watchwords, duelling, 
and improper behavior at public worship, and sundry other offences 
against military good conduct. They provide rules for enlistment, 
discharging and granting furloughs to the men ; for courts-martial, 
and for the disposal of the property of deceased soldiers ; and they 
prescribe the punishments for various offences. The articles of 
war must be read publicly at least once in every six months to 
every regiment and troop in the army. 

MILITARY ACADEMY. 

In 1802 an act of Congress founded this academy, and placed it 

at West Point, on the western side of the Hudson River, about 
fifty miles from the city of New York. Begun on a small scale, 
and for some years lingering in comparative obscurity, after a while 
it attracted the attention of the people and of Congress, and has 
gradually grown into one of the very best organized and most 
efficient of the educational institutions of the country. For its own 
particular purpose, which is the training of young men to become 
officers in the army, it has, of course, no competitor in this country. 
It has proved its usefulness in this respect by the excellent officers 
whom it has educated. But the education which it gives is com- 
plete and thorough ; and many of its graduates have left the mili- 
tary service, and become eminent and useful in various occupations 
in civil life. 

Every State is entitled to send as many students as it has sena- 
tors- and representatives in Congress, and every Territory, and the 
District of Columbia, may send one. Usually the representatives 
nominate the students, and the President appoints them. Of late 
a custom has been introduced, whereby a representative, when his 
turn to nominate comes, calls together a board of competent exam- 
iners, and submits all who offer themselves as candidates to a com- 
petitive examination, and gives to the President the name of him 
who is most approved by the board. There may be exceptional 
cases, where the representative would do well to nominate without 
reference to such a board. But the custom is a good one, and it 
may be hoped that it will become universal. In addition to those 
appointed from the congressional districts, the President appoints 
ten at large, or from where he will. 

THE NAVAL ACADEMY 

Is now established in Annapolis, in Maryland. Its purpose is 

to educate students to become officers in the navy. The education 



A CITIZEN OF THE UNITED STATES. 81 

of the pupils is thorough, but of course is especially directed to 
accomplish the special purpose of the school. Still this school, like 
the army school, has sent out into civil life men who have distin- 
guished themselves in various ways. The appointment to students 
in this academy is, like that of the military school, founded mainly 
on the congressional districts. 

The students in both of these schools are entirely supported by 
the government. The examinations are frequent, and, without 
being too severe, are real; and no one can graduate without industry 
and fidelity to duty. Still, the number of students in both schools 
is usually in excess of the demands of the army and navy; and 
hence it is that the benefits of the excellent education they give are 
not confined to them, but are diffused through the country. 

WARS OF THIS COUNTRY. 

The war of Independence cannot be called a war of this nation, 
but rather a war by which we became a nation. Beginning with 
the first blood shed, on the 19th of April, 1775., it continued eight 
years, when it was terminated by the cessation of hostilities, pro- 
claimed 19th of April, 1783, and the treaty of peace and indepen- 
dence, signed the 3d of September following. 

We may call the difficulty with France, which occurred some 
twelve or fifteen years after our peace with England, an imperfect 
war. France counted too much on our sympathy and active support 
in her contest with England. She had helped us, and wanted us to 
help her ; and there were so many in this country who desired to 
gratify the wishes of France, that it required the whole influence of 
Washington, aided by our wisest and strongest men, to avert a war 
with England. Then France was angry, and assumed an offensive, 
not to say hostile, attitude ; and now it needed all that our best and 
wisest men could do to prevent a war with that country. France 
authorized the capture of American vessels under certain circum- 
stances; we, in return, authorized the capture of French vessels, and 
there were some conflicts on the ocean. But finally the war-cloud 
was dispersed,, and* war was averted. 

THE SECOND WAR. 

This, again, might seem hardly to deserve so large a name. But 

Tripoli, Morocco, and Algiers claimed the right of exacting tribute 
from all who navigated the Mediterranean Sea. Other nations 
submitted to it. Our government would not. They took some of 
our merchant ships, and imprisoned the seamen. In 1801 the Pacha 

6 



82 THE POLITICAL RIGHTS OF 

of Tripoli declared war against us. We sent a navy into the Med- 
iterranean, under command of Commodore Preble, and succeeded 
in putting a stop to these piracies, so far, at least, as concerned us. 

THE THIRD WAR. 

This was a war with England. Many causes of mutual 
offence and hostility had been operating upon both nations for 
some years. At length, in 1812, war was declared. The immediate 
and ostensible cause was a claim on the part of the British govern- 
ment to stop our ships, whether private or public, board and search 
them, and take out seamen who had deserted from their vessels, and, 
being subjects of the British government, had emigrated to this 
country. This claim that government enforced in many instances, 
some of which were attended with peculiarly offensive circum- 
stances. Our government denied this right, claiming that our flag 
protected those who sailed under it. So we went to war, which 
lasted until the 24th of December, 1814, when a treaty of peace 
was signed at Ghent, in Germany, where our commissioners had 
met the British commissioners. Had there been an ocean telegraph 
in those days, it would have prevented the bloody battle of New 
Orleans, in which, on the 8th of January, 1815, Jackson defeated 
the English. Some naval battles were fought afterwards by ships 
which had not heard of the peace. The remarkable thing about 
the treaty of peace was, that it included a settlement of none of the 
great questions on which we had gone to war. It was, nominally, 
just a peace between nations who were weary of fighting. But, in 
fact, the war itself had determined these questions in our favor; 
for England has never since enforced or advanced the right to 
search our vessels for her seamen and subjects, and, it may safely 
be asserted, never will. 

THE FOURTH WAR. 

This was a war with Mexico. The Mexican State of Texas 
revolted from Mexico. We helped Texas, and it established its 
independence. Then it called upon our government to protect it 
against Mexico. This our government was very willing to do, and 
sent an army into the western part of the Territory of Texas, nom- 
inally to protect it from invasion. There a battle was fought on 
the 26th of April, 1846. Other battles followed ; and on the 12th 
of May Congress passed an act, not declaring war, but declaring 
that war actually existed between, this country and Mexico, and 
asserting, in substance, that the war had been brought on by Mex- 



A CITIZEN OF THE UNITED STATES. 83 

ico ; and on the next day President Polk issued his proclamation 
of war. 

In March, 1847, General Scott took command, and overran Mex- 
ico, capturing her chief cities, and among them the capital. The 
whole country was in our power, and virtually in our possession. 
Peace was made by a treaty on the 2d of February, 1848, by which 
we retained, as a part of our country, New Mexico and California. 
Texas had already been admitted as a State in 1845. This war was 
honorable to our arms. But whether this attack upon a feeble 
neighbor, and taking from her nearly half of her territory, was hon- 
orable to our country and to our government, may be questioned. 
But to this war we owe the possession of California, the peculiar 
value of which territory was then unknown. 

THE FIFTH WAR. 

This war is still in everybody's recollection. It was the war 
between the United States of America and the Confederate States. 
It began by the attack on Fort Sumter, in the harbor of Charles- 
ton, on the 12th of April, 1861, and continued for four years, when, 
on the 8th of April, 1865, Lee surrendered to Grant. There was 
no declaration of war, no treaty of peace. It was a civil war. 
It was fought only between parties and regions of the same country. 
And yet it was the greatest war ever waged on earth, whether we 
measure it by the extent of country over which it reached, or by its 
enormous expenditure of treasure and of life; for nearly a million 
of lives were lost and ten thousand millions of dollars expended. 
It was a war between the States which permitted slavery and those 
which did not. It resulted in the extinction of slavery throughout 
the country ; and at this day, in every part of the land, there is no 
difference in law between the white race and the black race. 



SECTION XIV. 
POWER TO BORROW MONEY. 

Congress has power "to borrow money on the credit of the 

United States." As the world now goes, it was perhaps necessary 
that Congress should have this power, and perhaps necessary that 
Congress should exercise this power. But the whole business ol 
running in debt, whether for a man or a nation, is a dangerous 
thing. National indebtedness was unknown in ancient times ; and 
only within a century or two has it grown into its present enormous 



84 THE POLITICAL RIGHTS OF 

magnitude. England set the example ; and its national debt seemed 
a century ago to cautious men an intolerable burden, when it was 
hardly more than the interest which is now paid annually. The 
present debt of that country is now but little less than four thousand 
millions of dollars ; and some of their wisest men have said that 
the idea of ever paying it is, in fact, abandoned, nothing being hoped 
or attempted but such a continuation of the prosperity of the country 
as shall enable it to sustain the taxation necessary to pay the interest. 
Even that has become of late years problematical. If the commerce 
and manufactures of those islands should receive any material check, 
the necessary taxation would become intolerable, and would no 
longer be borne. Disguise it in whatever ways may be devised, the 
taxation to pay the interest of a national debt is just so much con- 
tributed by the wages of labor and the profits of business, and the 
food drawn from the land. 

How is it in our own country? We have always maintained 
not only the purpose, but the effort, to pay it off. In the years 1835 
and 1836 our national debt was paid in full (excepting a trifling 
amount, which for special reasons remained some time longer unpaid) ; 
but it began to grow again, and not very slowly. The late war 
caused an enormous increase of the debt, — from $88,498,000 to 
$2,757,253,000. But to the honor of our country be it said, that, 
on the return of peace, measures were at once adopted not merely 
to pay the interest, but gradually, and not very slowly, to pay the 
principal. It has already been reduced from the sum last mentioned, 
which was the amount of the debt on the 1st of July, 1865, and the 
highest amount reached during the war, to $2,141,833,000. 

It is not to be denied, however, that efforts by some men have 
been made not only to withhold payment of the promised interest, 
but to give up all endeavor to pay the principal. As yet they have 
not succeeded. It may be hoped they will never succeed. Heavy 
as the burden is, we can bear it better than the heavier burden of 
national disgrace. Let us preserve our nation's honor by national 
honesty ; for if we were moved even by the lower motives, we might 
still see that national discredit would be a great national loss. Let 
us try to lift this burden off the nation as soon as we can, without 
excessive effort, that it may not press as a permanent misfortune 
upon our posterity. A dim feeling that " posterity has done nothing 
for us, why should we do so much for posterity," may enter some 
minds, and more perhaps than are conscious of it. But our fore- 
fathers did every thing for us. To their wisdom, their efforts, their 
sacrifices, we owe all we have and all we are. We can repay our 
debt to them only by acting for posterity as they did for us. 



A CITIZEN OF THE UNITED STATES. 85 



SECTION XV. 
POWER TO COIN MONEY. 

This is always recognized as a right which belongs necessarily 
to every independent sovereignty. A coin is a piece of metal on 
which some sovereign, prince, or State has placed its symbol, and 
thereby declared that the piece of metal contains a certain quantity 
of a certain purity. 

Coins are the money of the world. They rest npon the faith and 
honesty of the State which issues them. Paper money, so called, is 
not mcney; it is only the promise to pay money. It is compara- 
tively a modern invention. While it is convertible at pleasure into 
coins, and is received as coined money because so convertible, it is 
then the representative of money, but itself is never money. 

Formerly, before the invention of paper money and national 
indebtedness, governments in great straits resorted to the device of 
" debasing the coin," as it was called. That is, a king would make 
a coin of gold or silver, with the mark that declared it to contain, 
we will say, an ounce of silver, and he would put one-fourth of an 
ounce of lead into it, making it contain only three-fourths of an 
ounce of silver. This seemed to give him a quarter part of all his 
coinage for the price of lead ! 

Sometimes this debasement would take place secretly, the king 
hoping that it would not be discovered. Sometimes it was avowed, 
and the king would make a law that the new coins should be taken 
as of the same value with the old ones. Equally foolish was he to 
hope that his secret would not be found out, or that his law could 
make lead worth as much as silver. Debasement of the coin is never 
practised now, because the use of national paper money has taken 
place, and answers the same purpose. All States now use this. Perhaps 
they will find out that they are equally foolish with the kyig above 
mentioned. As time goes on, and the world becomes wiser, it may 
perhaps discover that the legal substitution of promises to pay, 
instead of paying, while it may give immediate relief, and even 
a flush of prosperity, is necessarily followed, sooner or later, by a 
period of equal, if not greater, depression and disaster. 

When the exigencies of the late war pressed with almost crushing 
weight upon our government, they yielded to the necessity. Up to 
that time, only money could legally satisfy a debt or promise to pay 
money ; in other words, only money was a legal tender. But the 
government, by law, made their own promises to pay money a legal 



86 THE POLITICAL RIGHTS OF 

tender in the stead of money ; and thus paper money came into 
universal use, and actual money disappeared. 

There was some effort to give this measure a constitutional sanc- 
tion, under the power given to Congress "to coin money and regu- 
late the value thereof." But it was vain and meaningless. The 
measure rested simply upon overpowering necessity ; and on that 
ground it might be defended as a thing that was done because it 
was impossible to create and use the means necessary for the preser- 
vation of our national existence without doing it. That is to say, 
it may be defended on the ground of an overruling necessity, and 
on no other. It was a case of national life or death. 

At the time, many sensible men thought it would be better to go 
on without making paper money legal, and raise whatever sums were 
necessary by loans. But these sums were so enormous, that public 
credit would have gradually sunk so low (if it did not wholly perish) 
that the national bonds would have brought a very low price, and 
the debt would have exceeded all possibility of payment ; and the 
interest payable thereon required a taxation which could not have 
been endured, and would have ended in repudiation; that is, in 
national bankruptcy and dishonor. Our experience in the compara- 
tively trifling war with Great Britain in 1812 may give us some 
instruction. Then our bonds were sold at from 15 to 25 per cent 
discount, the government receiving their payments in bills of banks 
that did not pay specie; and, in fact, the government borrowed 
money at enormous rates. Had we tried the same thing in the civil 
war, the banks throughout the country must have suspended, and 
the government have carried on the war with their paper, and not 
with gold and silver ; and when things were at their worst, and 
money was needed most, our bonds would not have brought half 
their nominal amount. As it was, very skilful financiering was 
required to carry us along. And, on the whole, it may be believed 
that our condition at this time, bad as it is, is certainly no worse 
than it would have been had the government attempted to struggle 
through our difficulties on a hard money basis. 

It is certain, however, that they who concluded to resort to paper 
money as the best thing they could do, accepting it as a necessity 
forced upon them by the war, had no thought of its continuing much 
beyond the war. They supposed, and the nation supposed, that as 
soon as peace was established, the necessity of paper money would 
pass away, and the law making it a legal tender would be repealed. 

So it has not been. At this day, after nine years of peace, we 
have only paper money in use, and as much of it as ever ; and no 
settled and definite plan has yet been adopted to relieve us from 
this heavy burden. It is undoubtedly a principal cause of the low 



A CITIZEN OF THE UNITED STATES. 87 

credit of the United States in the markets of the world, in com- 
parison with that of nations some of which have not one-tenth of 
our resources. This costs us much, in many ways. What it costs 
us in one way may be learned from a comparison of our debt and 
interest with the debt and interest of Great Britain. We may call 
our debt, in round numbers, two thousand millions. It is, as already 
stated, a little more. It costs us annually about one hundred mil- 
lions, or 5 per cent. The debt of Great Britain is but little less than 
four thousand millions (exactly $3,924,860,000), and it costs them 
annually about one hundred and twenty millions, or 3 per cent. 

At this moment there is no question more interesting to the 
peopl 3 than when and how we can be done with paper money as a 
legal tender, and take our place among the nations whose business 
rests upon a gold and silver basis. Everybody admits the expe- 
diency, and indeed the necessity, of doing this. Everybody knows 
that when it takes place there must be a universal shrinking of 
values, and, may be, a universal distress. Everybody is therefore 
seeking for a plan which will do away with irredeemable paper 
money as soon as may be, and with the least possible disturbance 
and distress in the community. 

Innumerable are the plans proposed. All that can be said here 
is, that it may be hoped that some one will be selected, and then 
adhered to firmly. Whether it is the best plan, or the second best, 
or the third best, is not of so much consequence as that it is one 
which, in the end, will accomplish its purpose ; and that it be carried 
out into full effect, steadily and constantly, in despite of the clam- 
orous begging for relief which is sure to be heard in those troublous 
times which are sure to come. If any such plan were adopted, and 
the conviction that it would be adhered to fixed in the public mind, 
this conviction would of itself accomplish half the purpose of the 
plan of recovery. 



SECTION XVI. 
OF NATURALIZATION. 

All that the constitution says upon the subject is, that Congress 

has among its powers one " to establish a uniform rule of naturali- 
zation." 

There were wise men among the framers of the constitution ; but 
the wisest of them could not have anticipated the vast immigration 
into this country which has taken place. The subject excited little 
attention ; for we find in the journal of the convention that it sjave 



88 THE POLITICAL RIGHTS OF 

rise to no debate. But of what immense importance it has been ' 
This country has offered a refuge and a home to the indigent sub- 
jects of old States ; an opportunity for successful industry to those 
to whom the crowded countries beyond the seas refused the means 
of well-paid labor and comfortable subsistence ; and safety and 
welcome to those whom oppressive laws threatened with the loss of 
liberty and life. If we add that it permitted an escape from punish- 
ment to some who deserved it for their crimes, we speak of a few 
only, who bear no proportion to multitudes who have come to us 
for other and better reasons. 

By the census of 1870 the whole number of the population of 
this country was 38,558,371 ; of this number 5,567,229 were foreign 
born, or more than one-eighth of the whole. We read in history of 
the countless hordes who, in the fourth century of Christianity and 
afterwards, came down from the northern regions of Europe and 
overspread the whole of the Western Roman empire, conquerors 
everywhere, and founded the existing nations of southern and 
middle Europe. They were centuries in doing this work. And 
yet the whole of these invading hosts, from the beginning to the 
end, were probably a smaller number of persons than those who 
have come from abroad, and have died or are now living in the 
United States. And still our broad lands welcome them; and 
should the crowded millions of Asia, now separated from us onl\ 
by the ocean, find their way across that highway of nations, for 
them also we can offer land enough, and a welcome, if only we can 
hope that they will leave behind them habits which must be a bar- 
rier between them and us, and bring with them no elements of char- 
acter which must needs prevent their taking their place as citizens 
of our common country, free without license, and useful by their 
industry without being harmful by their lives. 

By naturalization a foreigner becomes, to all intents and pur- 
poses, a citizen of the United States, with no disability attaching to 
him on account of his foreign birth, except that he cannot be Presi- 
dent or Vice-President of the United States. Congress, in pursu- 
ance of the power given to it by the constitution, has, at sundry 
times, enacted laws of naturalization. Those in force at the present 
time are as follows : — 

LAWS OF NATURALIZATION. 

An alien or foreign-born person may be naturalized, if he declares, 

on oath or affirmation, before the Supreme, Superior, District, or 
Circuit Court of some one of the States, or a Circuit or District 
Court of the United States, two years at least before his admission, 



A CITIZEN OF THE UNITED STATES. 89 

that it was, bona fide, his intention to become a citizen of the United 
States, and to renounce all allegiance and fidelity to any foreign 
prince, potentate, state, or sovereignty, and particularly by name to 
the prince, potentate, state, or sovereignty whereof such alien is at 
the time a citizen or subject. He must, also, when applying to be 
admitted, declare, on oath or affirmation, that he has never borne 
any hereditary title or been of any order of nobility, or, if he 
has borne such title, that he renounces the same, and that he will 
support the constitution of the United States, and that he renounces 
and abjures for ever all allegiance, &c. (as before). He must also 
prove to the satisfaction of the court, and by other evidence than 
his own oath, that he has resided within the United States five years 
at least, and within the State or Territory where the court then is, 
one year at least, and has behaved during that time as a man of 
good moral character, attached to the prosperity of the constitution 
of the United States, and well disposed to the good order and hap- 
piness of the same. 

An alien who is a minor, and has resided in the United States 
three years next preceding his arriving at the age of twenty-one 
years, and has continued to reside therein until he made application 
to be admitted a citizen, may, after arriving at twenty-one years of 
age, and after residing in the United States five years, including the 
years of his minority, be admitted without having made the previous 
declaration stated above. But at the time of his admission he must 
declare, on oath or affirmation, and prove to the satisfaction of the 
court, that it had been his bona fide intention during the three years 
next preceding his admission to become a citizen of the United 
States. At the time of his admission he must declare, on oath or 
affirmation, and prove to the satisfaction of the court, his residence 
and character, and renounce all allegiance, &c, in the same way as 
required in the preceding section at the admission of an alien not 
a minor. 

In addition to these it is provided that a seaman who declares 
his intention as before provided, and thereafter serves three years 
in American vessels, may be admitted as a citizen. Also, that one 
who enlisted in the regular or volunteer service of the United 
States, and was honorably discharged therefrom, may be admitted, 
after proof of residence of one year within the United States, and 
of good character. 

Every court of record in any State having common-law juris- 
diction, and a seal and clerk or prothonotary, is a District Court 
within the meaning of these laws. 



90 THE POLITICAL RIGHTS OF 



PRACTICE. 

An alien desiring to make the preliminary declaration may go 

to the clerk of any of the above courts, and, expressing his intention, 
he will receive from the clerk the proper form, or if the clerk can- 
not give it to him, may draw it up in the form given below, and 
make oath thereto. This will be recorded, and a certificate given 
him, which he should keep ; but if he loses it, he may obtain a cer- 
tified copy from the clerk. 

Then, when the time comes for his admission, he mnst go to the 
clerk of a court competent to admit him and present his certificate. 
The clerk will give him a deposition, stating the above facts, which 
he will take, and go with his witnesses (one being enough, unless the 
court requires more) before the court who examines the applicant 
and the witness under oath; and the depositions are then signed and 
sworn to by the parties in open court, and the court then makes an 
order for his admission, and the clerk gives him a certificate that he 
has been admitted as a citizen, and this certificate is thereafter evi- 
dence of the fact ; and, if lost, a copy may be obtained from the 
clerk, the whole procedure being recorded. 

Annexed are forms proper for the whole procedure in naturaliza- 
tion. 

(1.) 

PRELIMINARY DECLARATION OF INTENTION. 
UNITED STATES OF AMERICA. 

To the Honorable the Judge of the Court of within 

and for the District of 

Respectfully represents (here insert the name of the applicant) of 
(residence) in said District an alien, that he was born in (place 

of birth) on or about the (time of birth) day of in the year of 

our Lord eighteen hundred and and is now about 

years of age ; that he arrived at (place where he first landed) in the District 
(or State) of (name of District or State) in the United States of America, 
on or about the (day of landing) day of in the year of our Lord 

eighteen hundred and ; that it then was, and still is, his bona 

fide intention to become a citizen of the United States of America, and to 
enounce forever all allegiance and fidelity to every foreign prince, state, 
potentate, and sovereignty whatsoever, — more especially to (name of 
sovereign or state to whom he owed allegiance) whose subject he has hereto- 
fore been. He therefore prays that this his declaration and intention may 
become a record of this honorable court, agreeably to the laws in such case 
made and provided. 

(Signature of Applicant). 



A CITIZEN OF THE UNITED STATES. 91 

District (or State) , to wit : Court, 187 

Then the said (name of applicant) personally appeared before the clerk 
of said court, and made oath to the truth of the facts as set forth in the 
above declaration to the court, by him subscribed. 

Attest: (Signature of Clerk). 

(2.) 

CERTIFICATE OF THE CLERK TO THE DECLARATION. 

A COPY. 

I, clerk of (naming the court), do hereby certify that the 

above is a true copy of the declaration of intention to become a citizen 
of the United States, of the original whereof is on record in 

my office. 

In witness whereof, I have hereunto signed my name and affixed the 
seal of said court, at on the day of 

in the year eighteen hundred and 

(Seal of the court). (Signature of Clerk) 

(3). 

APPLICATION FOR ADMISSION AS A CITIZEN. 
UNITED STATES OF AMERICA. 

District, ss. 
To the Honorable the Judge of the (here insert the name of the court) within 
and for the District of (here give the district or county). 

Respectfully represents (here give the name of the applicant) of (the 
name of the town or city) in said district, an alien, that he was 

born in (insert here the place of hi* birth) on or about the day 

of in the year of our Lord eighteen hundred and 

and is now about years of age; that he arrived at 

in the United States of America, on or about the day of 

in the day of in the year of our Lord eighteen 

hundred and that it is his bona fide intention to reside in and 

become a citizen of the United States of America, and to renounce all 
allegiance and fidelity to every foreign prince, state, potentate, and sover- 
eignty whatsoever, — more especially to (here insert the name of the sovereign 
or state to which he owed allegiance) whose subject he has heretofore been : 
All which appears in the record of the honorable court (naming 

the court where he made his preliminary declaration) , to wit, on the 
day of a.d. 18 

And the said petitioner further represents, that he has ever since con- 
tinued to reside within the jurisdiction of said United States, to wit, at 
said (the place or places of his residence in this country); that he has never 
borne any hereditary title, or been of any of the orders of nobility; that 
he is ready to renounce and abjure all allegiance and fidelity to every foreign 
prince, potentate, state, or sovereignty whatever, and particularly to (here 
repeat the name of the sovereign or state to which he has borne allegiance). 



92 THE POLITICAL RIGHTS OF 

whose subject he has heretofore been; that he is attached to the principles 
of the Constitution of the United States of America, and well disposed 
towards the good order and happiness of the same. 

Wherefore your petitioner prays, that he may be admitted to become 
a citizen of the said United States of America, according to the forms of 
the statutes in such case made and provided. 

(Signature of Applicant) . 

187 Sworn to by the said petitioner, 

Before me, Clerk. 

If the applicant was a minor, and made no preliminary declaration, the 
torm of his application must be the same as above, excepting that the 
words, " being then a minor under the age of years," must be 

inserted immediately before the words, " and it is his bona fide intention; " 
and the words, " all which appears in the record of," as far as * ' a.d. 18 ," 
must be stricken out. 

If the applicant comes as a sailor, who, having declared his intention as 
before provided, thereafter served three years in American vessels ; or if 
he comes as one who enlisted in the regular or volunteer service of the 
United States, and has resided one year within the United States, a state- 
ment of the necessary facts must be inserted immediately before, " Where- 
fore your petitioner prays ; ' ' and such changes made in the application as 
the facts require. 

(4.) 

DEPOSITION AND OATH OF WITNESSES. 

{Blanks to be filled in accordance with the facts.) 

UNITED STATES OF AMERICA. 

District, to wit : city (or toivn) of 187 

We both citizens of said United States, severally 

depose and say, that we have known the foregoing petitioner, 

for five years last past, during which time he has resided in said 
and that he has resided within the State of Massachusetts one year at 
least; and has conducted himself and behaved as a man of good moral 
character, attached to the principles of the Constitution of the United 
States, and well disposed towards the good order and happiness of the 
same. 

187 . Sworn to by said witnesses. 
Before me, 

Clerk. 

(5.) 

OATH OF PETITIONER. 

I, do solemnly swear, that I do absolutely and entirely 

renounce and abjure all allegiance and fidelity to every foreign prince, 

potentate, state, or sovereignty whatsoever, particularly to (name of the 

sovereign and state to which he has borne allegiance), whose subject I have 



A CITIZEN OF THE UNITED STATES. 93 

heretofore been; and that I will support the Constitution of the United 
States of America, — so help me God. 

(6.) 

CERTIFICATE OF CLERK TO THE OATH. 

(Blanks to be filled in accordance with the facts.') 

UNITED STATES OF AMERICA. 

District of to wit : 

At a special District Court of the United States, holden at said Boston, 
on the day of in the year of our Lord 187 

the said having produced the evidence required by law, took 

the aforesaid oath, and was admitted to become a citizen of the United 
States of America; and the court ordered that record thereof be made 
accordingly. 

Attest : 

Clerk. 
(7.) 
CERTIFICATE OF CLERK FOR RECORD. 
(Blanks to be filled in accordance with the facts.) 

UNITED STATES OF AMERICA. 

District, ss. 

Be it remembered, That at a District Court of at 

within and for the district of on the 

day of in the year of our Lord one thousand eight hundred 

and seventy . Personally appeared before the clerk of said 

court of in said district, an 

alien and a free white person, and by his declaration in 

writing, on oath set forth, That he was born in on or about 

the day of in the year of our Lord eighteen hundred 

and and is now about years of age; that he 

arrived at in the district of in the 

United States of America, on or about the day of 

in the year of our Lord eighteen hundred and that it then 

was, and still is, his bona fide intention to become a citizen of the United 
States of America, and to renounce forever all allegiance and fidelity to 
every foreign prince, state, potentate, and sovereignty whatsoever, more 
especially to whose subject he has heretofore been. He 

therefore prayed, that his said declaration and intention might become a 
record of said court, agreeably to the laws in such case made and pro- 
vided. 

Whereupon the declaration of the said was admitted to 

become a record of said court accordingly. 

In testimony whereof, I have hereunto set my hand and aflixed the 
seal of said court at this day of 

a.d. 187 in the ninety- year of the Independence of the 

United States of America. 

Clerk of the Court for the 

District of 



THE POLITICAL RIGHTS OF 



(8.) 

CERTIFICATE OF THE CLERK TO BE GIVEN TO THE APPLICANT. 

(Blanks to be filled in accordance with the facts.) 

UNITED STATES OF AMERICA. 

District, ss. 

TO ALL PEOPLE TO WHOM THESE PRESENTS SHALL COME, — GREET- 
ING. Know ye, That at the court of holden at 

within and for the district of on the 

day of in the year of our Lord one thousand eight hundred 

and seventy- of in said district, 

born in having produced the evidence, and taken and sub- 

scribed the oath, required by law, was admitted to become a citizen of the 
United States, according to the acts of Congress, in such case made and 
provided. 

In testimony whereof, I have hereunto set my hand and affixed the 
seal of said court at aforesaid, this day oi 

a.d. 187 and in the ninety- year of the 

Independence of the United States of America. 



Cleric of the Court for the 

District of 



FORMS ANNEXED TO THIS SECTION". 

1. Preliminary declaration of intention. 

2. Certificate of the clerk to the declaration. 

3. Application for admission as a citizen. 

4. Deposition and oath of witnesses. 

5. Oath of petitioner. 

6. Certificate of clerk to the oath. 

7. Certificate of clerk for record. 

8. Certificate of the clerk to be given to applicants. 



SECTION XVII. 
ADMISSION OF NEW STATES. 

The framers of the constitution contemplated the possibility, 

perhaps the probability, of new States desiring and receiving ad- 
mission into the Union. But we may look into the debates and 
discussions of those days, and nowhere, even among the most san- 
guine anticipations, shall we find even a hope expressed of the vast 
increase of the Union by the admission of new States. To the 
original thirteen, twenty-four have been added, making the whole 
number now thirty-seven; and we have also nine territories organized, 



A CITIZEN OF THE UNITED STATES. 95 



which are awaiting a sufficient growth in population to ask for 
admission as States, and some of whom will receive it soon. 

In giving to Congress this power of admitting new States, pre- 
cautions were adopted to prevent injury to States already in the 
Union; no new State can be formed within an old State, as by 
the junction of two or more States, or parts of States, without the 
consent of the legislature of the States concerned, as well as of 
Congress. 

It must be remembered that by this formation of new States 
the balance of power between the States may be much affected, by 
reason of the construction of the Senate. Thus Texas was ad- 
mitted as a State in 1845. But in the act admitting that State 
(which covers a vast extent of country), it was provided that four 
new States might be formed from that single State. If that pro- 
vision were carried into effect, what is now Texas would have five 
times the strength in the Senate which it now has. 



SECTION XVIII. 
A REPUBLICAN FORM OF GOVERNMENT GUARANTEED. 

The constitution provides that the United States shall guarantee 
to every State in this Union a republican form of government. 

The true construction of this clause is, not that the United States 
shall guarantee to each State that it shall have a republican govern- 
ment, but that the United States shall guarantee to every State 
that every other State shall have a republican form of government. 
For, let it be supposed that a State desired admission under a gov- 
ernment which was not republican in form. Thus we may suppose 
by way of illustration, what is hardly possible, that one of the prov- 
inces of the Dominion of Canada desired to enter into the Union, 
but that it retained so much fondness for monarchical government 
that it wished to have a permanent executive, with an hereditary 
body invested with hereditary rule or power. If the word " guar- 
antee " is to be construed technically, it is only a promise to a party 
to make good to that party some benefit or advantage which that 
party requires or desires. Therefore, that party may waive the 
guaranty, and may say it was intended only to secure to us that we 
should have a republican form of government if we chose, and we 
do not choose it. Surely the answer would be, All the other States 
are interested in this question. All would be injured if there were 
one among them which was not republican, and the constitution 
promises all that all should be republican. 



96 THE POLITICAL RIGHTS OF 

The importance of this question springs from the possibility 

that some one or more of the States might desire changes in her 
form of government not compatible with republicanism. For ex- 
ample, it might disfranchise certain classes, giving the elective 
franchise only where a large pecuniary qualification existed, or 
making eligible to office only the members of a narrow class, always 
retaining the name of a republic. It is plain that every State 
might complain of this, and say to Congress, The constitution gives 
this guarantee of republicanism not to that State only, which may 
waive it if it will, but to all of us, and to every one of us ; and we 
do not waive it. 

If there is ever an attempted violation of the rule implied under 
this guaranty, it will undoubtedly be concealed and disguised by 
false pretences. That is to say, the State will claim still to be a 
republic, as Holland did when it became virtually a monarchy ; and 
as Venice did, when its government became a close and despotic 
oligarchy. The difficulty will be in the exact definition of a re- 
public. If the time ever comes when this difficulty shall present 
itself, well may we or our children or our children's children re- 
member that Lincoln has left for us, under circumstances which 
made it immortal, the definition we have already spoken of. A 
government of the people, by the people, and for the people, is a 
republic, and cannot fail to be a republic. And a government 
which does not come within this definition, whatever it may call 
itself, is not a republic. 



SECTION XIX. 
OF AMENDMENTS TO THE CONSTITUTION. 

Some persons in our own country, and many more in the old 

countries of Europe, have regarded the respect which the people of 
this country pay to their constitution as excessive. They represent 
the constitution as a fetter upon us; as more than a fetter, — as an 
iron framework with which we have chosen to invest ourselves, and 
which, however we outgrow it, we cannot improve. This reproof 
would be just, were it not that the constitution provides for its own 
growth, development, and improvement. 

It is the supreme law of the land, and expresses the will of the 
people. But every law is made by the servants of the people, and 
expresses their will. Why should not the constitution be as easily 
changed and made to conform as promptly to any change in the will 
of the people as the law itself? Look, however, at the law, and see 
how that can be changed, and, on the other hand, how it cannot be 



A CITIZEN OF THE UNITED STATES. 97 

changed. A mass meeting of the citizens of Ohio, for example, even 
were that physically possible, could not change the law. And why? 
Because the people have seen fit to guard themselves against hasty 
and unwise legislation, by surrounding it with a certain measure of 
difficulty and delay. First, the servants of the people must be for- 
mally chosen by the people, to do for them this very work of legis- 
lation. Then they assemble in two bodies, each of which is a check 
upon the other, and the executive is entrusted with a limited veto 
upon the two Houses. Then every bill proposed, before it can 
become a law, must in each House pass through several appointed 
steps, at any one of which it may be arrested, and all of which 
taken together tend to secure to every proposed measure a sufficient 
consideration. 

The question may now be repeated, Why are not these checks 
sufficient in the case of the constitution? The answer is easy. 
The constitution contains what the people believe to be essential 
and fundamental principles of all law, together with a machinery 
of government carefully devised to secure wise legislation and faith- 
ful execution of the laws ; and to this machinery it is desirable to 
give a large measure of permanence and stability. Therefore the 
constitution may be changed at any time and to any effect which 
the will of the people requires ; but only by a method well devised to 
make it certain that this change is desired not by the passionate, 
impulsive, and temporary will of the people, but by its careful, in- 
structed, and deliberate will. 

AMENDMENTS, HOW MADE. 

Congress may propose amendments, or may call a convention to 

propose amendments, if the legislatures of two-thirds of the several 
States ask for it ; and amendments made by Congress or by that 
convention are valid as parts of the constitution, when they are 
ratified by the legislatures of three-fourths of the States, or by con- 
ventions in three-fourths thereof, as either mode may be proposed 
by Congress. 

Experience thus far has justified the framers of the constitution 
in believing this method would render it sufficiently easy for the 
people to change the constitution whenever they did certainly and 
unmistakably desire it, and sufficiently guarded to protect the con- 
stitution from any change which was not so desired. 

By the Congress which met in New York, in 1789, the first ten 
articles of amendment were proposed and ratified in that year, in 
1790, and 1791. They were all founded upon wishes or recommen- 
dations presented by different States, when adopting the constitu- 
tion. 

7 



98 THE POLITICAL RIGHTS OF 

In 1793 was proposed the eleventh article of amendment, which 
was ratified. In 180.3, the twelfth article ; in 1865, the thirteenth 
article ; in 1868, the fourteenth article ; in 1870, the fifteenth arti- 
cle. These articles are published in preceding pages, in connection 
with the constitution. 



SECTION XX. 
OF THE CENSUS. 

This is a Roman, that is to say, a Latin word. By the ancient 

constitution of Rome, the people were divided into six 4 classes, 
according to their wealth; those few only who possessed a very 
large sum being in the first class, and the required sum diminishing 
in the others, down to the sixth class, which was composed of those 
who had nothing, or too little to entitle them to admission in any 
higher class. That this classification might be made, every Roman 
citizen was required to come on a certain day to an open place in 
the city, and there declare, under oath, his name, dwelling, children, 
and the value of his property, under penalty of being scourged and 
losing all his goods. This enumeration took place every five years, 
and was called a census. I have described it briefly, to show that 
this periodical enumeration was made for political purposes, being 
required by the classification of the citizens, who then voted in the 
classes thus formed. Of the censuses taken among different nations 
in different ages, all have been for some political purpose, from the 
time when a decree went forth from Caesar Augustus " that all the 
world should be taxed, and all went to be taxed (or to be registered 
for the purpose of taxation), every one unto his own city," to our 
own day. 

As by onr constitution political power was given mainly in 
proportion to numbers, it was essential that an eiiumeration should 
be made from time to time ; and the constitution provided that the 
requisite enumeration should be made within three years after the 
first meeting of Congress, and within every ten years afterwards. 

The first Congress ordered the first census, which was taken in 
1800, and a census has been taken every ten years since. It was 
apparent that at first there was little thought of learning more by 
the census than what was requisite to distribute political power 
among the people, in accordance with the requirement of the con- 
stitution ; for the first census only contained and enumerated the 
free white males of sixteen years and upwards, the same under that 
age, the number of females, and the number of slaves, and the num- 
ber of heads of families. 



A CITIZEN OF THE UNITED STATES. 99 

Since then, however, the science of Statistics has received im- 
mense development. It is the object of this science to ascertain, 
collect, and arrange all facts which have an important bearing upon 
the resources, the growth, the political, financial, intellectual, indus- 
trial, social, physical, and moral condition of a nation. Societies 
have been formed, journals published, and meetings held of men 
interested in such facts, from various countries, all intended to pro- 
mote this science. It was seen at once that our census afforded a 
most important and serviceable instrument for that purpose. Every 
succeeding census has been made more instructive, by increasing the 
subjects of inquiry and improving their classification. At present, 
among the topics concerning which inquiry is made and information 
recorded, may be enumerated the number of families, of houses, the 
sex, age, color, birthplace, occupation, profession, or trade, of every 
person, the married and the widowed, the deaf and dumb, blind, 
idiotic or insane, with the age and sex of each ; the age, sex, color, 
occupation, and birthplace of every one who had died within the 
year of enumeration and before the day thereof, with the cause 
thereof. Also the value of property ; the number of acres improved 
or unimproved; their value, their productions, with the number, 
kinds, and value of the live-stock owned, and of agricultural imple- 
ments and machinery; the number and kinds of educational institu- 
tions, with the number of scholars and of teachers, and their revenue; 
and the number of those who cannot read and write; also inquiries 
concerning mines, manufactures, and fisheries are included, so as to 
ascertain the amount of capital invested, the motive power employed, 
the number of persons of each sex employed and the wages paid, 
the quantity, kind, and value of raw materials used, and the quan- 
tity, kind, and value of the products. 

Already has the information thus acquired been of great use in 
the national and State legislation, and also in regulating or suggest- 
ing private enterprises. And as time goes on, and experience shows 
how to make the census more useful, its beneficial results will be 
greater, more clearly seen, and more widely acknowledged. Many 
of the States have provided by law for a census within each State, 
at periods intermediate between those of the national census. 

We annex to this chapter some instructive tables, giving to the 
reader the means of comparing this country with other countries in 
Europe, Asia, and Australia, and then with each other, upon inter- 
esting points. 1 

For example, by Table I. he will find that the United States 

1 We take these tables, by permission, from a valuable and instructive work, entitled 
'The Statesman's Manual," published by Macmillan & Co., London and New York. 



100 THE POLITICAL RIGHTS OF 

ranks the fifth in population among all the States in the world, 
while it is the fourth in territorial extent. In this table the British 
empire stands second only to the Chinese empire in population, 
while we hold the fifth place. But the population of the British 
Islands is much less than of this country ; and to give the British 
empire the place it holds in this table, the enormous population 
of India must be added to that of the British Islands and colonies. 

By Table II. we learn that this country is only the twenty-third, 
if the countries of the world are ranked according to the density 
of population, or the number of inhabitants to the square mile of 
surface. Belgium stands at the head. This little State, which is 
smaller in extent than any but 7 of our 37 States* has 451 persons 
on each square mile ; while we have but 11. That is to say, this 
country is 3,421 times as large in extent as Belgium, while that coun- 
try has 41 times as many living on each square mile as this country. 
The British Islands have 24 times as many, France 15 times as 
many, and Germany 17 times as many persons to the square mile as 
we have. Many ages must elapse before our population can press 
upon our means of subsistence, all which are derived primarily 
from land, so as to make it as difficult for the masses to live here in 
comfort as it now is there. No wonder that their crowded popula- 
tion is pouring into our vacant lands at such a rapid rate. 

Table III. relates to railroads. Here we lead the world in the 
number of miles open to traffic, having more than four times as many 
as the British Islands, which come next to us. And yet we rank 
but the eleventh in the number of miles of railroad to each square 
mile of surface. 

Table IV. relates to telegraphs. Here, too, we lead the world in 
the miles of telegraph ; but not so widely as in railroads, Russia, 
which comes next to us, having nearly half as many. We hold a 
still lower place, — only the seventeenth, — if the nations are ranked 
by the miles of telegraph to the square miles of surface. 

Table V. relates to the mercantile navies of the world. It shows 
us that we rank second, Great Britain alone exceeding us, having 
more than twice as many in tonnage, and three times as many in 
number as we have. 

Table VI. gives the debts and revenue of the various nations, in 
pounds sterling, to which all of them are reduced ; this sum multi- 
plied by five gives the amount in dollars. Here Great Britain takes 
the lead, France coming next, and we holding the third place. The 
debts are also compared with the revenues. The debt of Great 
Britain is equal to the revenue of 10 J years ; that of France to its 
revenue of 7| years; while our debt equals the revenue of 6| 
years. 



A CITIZEN OF THE UNITED STATES. 



101 



Rank of the Principal States of the World, 



According to Population. 



States. 



Inhabitants 

at last 

Enumeration, 

or Estimate. 



According to Territorial Extent. 



States. 



Area: 
English 
square 

miles. 



1. Chinese Empire 

2. British Empire 

3. Russian Empire 

4. Germany . . 
6. United States 

6. France . . . 

7. Austria-Hungary 

8. Turkey 

9. Japan 

10. Italy . 

11. Spain 

12. Siam. 

13. Brazil 

14. Mexico 

15. Sweden and Norway 

16. Belgium . 

17. Persia . . 

18. Portugal . 

19. Netherlands 

20. Peru . • . 

21. Colombia . 

22. Morocco . 

23. Switzerland 

24. Venezuela . 

25. Chili . . . 

26. Denmark . 

27. Bolivia . . 

28. Argentine Confed. 

29. Greece . 
80. Paraguay 



425,213,152 

199,817,108 

82,172,022 

41,058,139 

38,558,371 

36,469,875 

35,904,435 

35,350,000 

35,000,000 

26,796,253 

16,301,851 

11,800,000 

9,858,000 

9,176,082 

5,905,542 

5,087,105 

4,400,000 

3,995,152 

3,915,956 

3,199,000 

2,794,473 

2,750,000 

2,669,147 

2,200,000 

1,938,861 

1,784,741 

1,742,352 

1,736,922 

1,457,894 

1,200,000 



1. Russian Empire 

2. British Empire 

3. Chinese Empire 

4. United States 

5. Brazil . . . 

6. Turkey . . . 

7. Mexico . . . 

8. Persia . . . 

9. Argentine Confed. 

10. Peru ... 

11. Bolivia . . 

12. Colombia . 

13. Venezuela . 

14. Sweden and Norway 

15. Siam . . , 

16. Chili. . . , 

17. Austria-Hungary 

18. Morocco . , 

19. Germany . . 

20. France . . , 

21. Spain . . , 

22. Japan . . . 

23. Italy. . . , 

24. Paraguay . , 

25. Portugal . , 

26. Greece . . . 

27. Switzerland , 

28. Denmark . , 

29. Netherlands . 

30. Belgium . . 



7,861,330 

4,677,432 

3,924,627 

3,603,844 

3,100,104 

1,812,048 

1,030,442 

648,000 

515,700 

502,760 

473,300 

432,400 

368,235 

288,771 

250,000 

230,977 

226,406 

219,000 

212,091 

201,900 

182,758 

156,604 

112,677 

57,303 

36,510 

19,941 

15,233 

14,553 

13,464 

11,267 



102 



THE POLITICAL RIGHTS OF 



II. 

Density of Population of the Principal States and Territorial 
Divisions of the World. 



States and Territorial 
Divisions. 



Belgium 

England and Wales . . 

Netherlands 

Gt. Britain and Ireland . 

Italy 

Japan 

British India .... 

Germany 

Switzerland 

Ireland 

Austria-Hungary . . . 

France 

Denmark 

Chinese Empire . . . 

Scotland 

Portugal 

Spain 

Greece 

Sweden and Norway . 

Turkey 

Chili 

Morocco 

United States .... 
Russian Empire . . . 

Mexico 

Colombia 

Argentine Confederation 
Brazil 



Census 
Year. 



1870 

1871 

1870 

1871 

1871 
Estimate. 

1871 

1871 

1870 

1871 

1869 

1872 

1870 
Estimate. 

1871 

1868 

1860 

1871 

1872 

1844 

1869 
Estimate. 

1870 

1867 

1871 

1870 

1869 

1872 



Population. 



5,087,105 

22,704,108 

3,915,956 

31,817,108 

26,796,253 

32,794,897 

190,277,644 

41,009,999 

2,669,147 

5,402,759 

35,904,435 

36,102,821 

1,784,741 

425,213,152 

3,358,613 

3,995,152 

16,301,850 

1,457,894 

6,013,412 

35,350,000 

1,938,861 

2,750,000 

38,5,58,371 

82,172,022 

9,176,082 

2,900,633 

1,736,922 

10,095,978 



English 
square miles. 



11,267 

58,320 

13,464 

119,924 

112,677 

156,604 

963,929 

212,091 

15,233 

31,874 

226,406 

201,900 

14,553 

3,924,627 

30,685 

36,510 

182,758 

19,941 

288,771 

1,812,048 

130,977 

219,000 

3,603,844 

7,861,330 

1,030,442 

432,400 

515,700 

3,100,104 



Population 

per square 

mile. 



451 

389 

291 

265 

237 

209 

207 

193 

175 

169 

158 

150 

111 

110 

109 

108 

90 

73 

21 

20 

15 

12 

11 

10 

9 

7 

3 



A CITIZEN OF THE UNITED STATES. 



103 



III. 

Railways of the World. 



States and Territorial Divisions. 



Year. 



Length of 

Railways open 

for traffic. 



One mile of Rail- 
way to square 
miles of area. 



Belgium 

Great Britain and Ireland 

Netherlands 

Germany 

Switzerland 

France 

Italy 

Denmark 

Austria-Hungary . . . 

Spain 

United States of America 

Portugal 

Roumania 

Dominion of Canada . . 

British India 

Russia 

Sweden and Norway . . 

Chili 

Costa Rica 

Honduras 

Egypt 

Argentine Confederation . 
Uruguay ...... 

Peru 

Paraguay 

Australasia 

Mexico 

Turkey 

Cape of Good Hope . . 

Colombia 

Brazil 



Jan. 1. 

1872 
1873 
1872 
1873 
1871 
1871 
1871 
1872 
1872 
1870 
1873 
1869 
1871 
1873 
1870 
1872 
1873 
1872 
1873 
1873 
1870 
1872 
1873 
1873 
1873 
1870 
1870 
1873 
1873 
1873 
1872 



English miles. 

1,892 

15,814 

1,045 

13,066 

820 

10,333 

3,895 

530 

7,529 

3,801 

70,178 

453 

507 

2,928 

4,182 

7,297 

1,049 

452 

82 

62 

.737 

875 

67 

875 

44 

1,058 

300 

488 

134 

65 

410 



English square 
miles. 

6 

8 

13 

15 

18 

19 

27 

28 

30 

54 

66 

81 

90 

148 

230 

280 

292 

298 

318 

638 

907 

955 

1,290 

1,340 

2,334 

2,404 

3,435 

3,720 

6,000 

6,600 

7,573 



104 



THE POLITICAL RIGHTS OF 



IV. 

Telegraphs of the World. 



States and Territorial Divisions. 



Year. 



Length of 
Telegraph Lines. 



One mile of 

Telegraph Line 

to square miles 

of area. 



Great Britain and Ireland 

Belgium 

Switzerland 

Netherlands 

Germany ...... 

France . . 

Italy 

Denmark 

Portugal 

Greece 

Austria-Hungary . . . 

Spain 

United States .... 
Dominion of Canada . . 
Sweden and Norway . . 

Chili 

British India 

Turkey 

Australasia 

Costa Rica 

Egypt 

Uruguay 

Guatamala 

Mexico 

Russia 

Argentine Confederation . 

Colombia 

Peru 

Bolivia 

Ecuador 

Brazil 



Jan. 1. 

1873 
1872 
1873 
1872 
1873 
1870 
1870 
1870 
1870 
1872 
1872 
1870 
1872 
1872 
1871 
1873 
1872 
1870 
1869 
1873 
1870 
1873 
1872 
1870 
1872 
1872 
1873 
1870 
1873 
1872 
1878 



English miles. 

24,363 

2,694 

3,480 

1,869 

26,060 

23,100 

10,595 

1,225 

1,930 

1,226 

11,665 

7,011 

75,137 

10,995 

7,263 

2,045 

13,371 

16,125 

13,850 

220 

3,780 

312 

152 

3,150 

31,459 

3,150 

810 

608 

475 

210 

1500 



English 
square miles. 

4 

5 

6 

7 

8 

9 

10 

12 

14 

18 

20 

25 

36 

38 

40 

64 

72 

112 

114 

118 

188 

235 

272 

327 

330 

391 

534 

825 

985 

1,091 

2,580 



.A CITIZEN OF THE UNITED STATES. 



105 



The Mercantile Navies of the World. 



1. Sea-going Steamers. 


States. 


Number. 


Tonnage. 


Average Tonnage 


Great Britain 

United States 

France 

Germany 

Spain 

Italy 

Austria 

Netherlands 

Russia 

Sweden 

Norway 

Denmark 

Belgium 

Portugal 

Greece 

Turkey ....... 

Other States 

Total Steamers 


3,061 

403 

392 

200 

202 

103 

91 

95 

114 

143 

88 

71 

42 

17 

8 

9 

109 


2,624,431 

483,040 

316,765 

204,894 

138,675 

85,045 

84,155 

72,735 

67,522 

53,327 

41,602 

34,498 

80,444 

14.536 

3,390 

3,049 

70,067 


839 
1,198 
808 
1,024 
686 
825 
925 
765 
592 
373 
472 
412 
725 
855 
424 
338 
643 


5,148 


4,328,193 


847 


2. Sea-Going Sailing Vessels. 


States. 


Number. 


Tonnage. 


Average Tonnage 


Great Britain 

Norway 

Italy 

Germany 

France 

Spain 

Netherlands 

Greece 

Russia 

Austria. ....... 

Sweden . 

Denmark 

Portugal 

Turkey 

Belgium 

Other States 

Total Sailing Vessels . . . 

Total Steamers and Sailing 
Vessels 


20,832 
6,786 
3,930 
4,220 
3,834 
3,973 
2,867 
1,447 
1,955 
.1,327 

965 
1,827 
1,226 

415 

224 
46 

407 


5,320,089 

2,182,838 

1,137,177 

1,126,032 

893,952 

768,059 

640,211 

397,232 

392,894 

347,744 

336,113 

327,409 

170,834 

93,815 

34.711 

14,704 

152,022 


255 
314 
289 
266 
233 
193 
188 
274 
201 
262 
348 
177 
139 
226 
168 
319 
373 


66,281 


14,185,836 


252 


61,429 


18,514,029 


801 



10b 



TEE POLITICAL RIGHTS OF 



VI. 

Debts and Revenue of the Principal States of Europe and America. 



States. 



Europe : — 

Austria-Hungary 
Belgium . . . 
Denmark . . . 
France .... 
Germany : — 

Prussia . . . 

Bavaria . . . 

Wurtemburg . 

Saxony . . . 
Great Britain and 

Ireland . . . 
Greece .... 
Italy .... 
Netherlands . . 
Portugal . . . 
Russia .... 
Spain .... 
Sweden and Norway 
Switzerland . . 
Turkey . . . 

America : — 

Argentine Confeder- 
ation 

Bolivia 

Brazil 

Canada, Dominion of 

Chili 

Colombia . . 
Honduras .... 

Mexico 

Peru ...... 

United States . . 
Uruguay .... 

Venezuela. . . . 



Financial 
year. 



1873 
1873 

1872 
1873 

1873 
1872 
1872 
1872 

1873 
1872 
1872 
1873 
1873 
1873 
1871 
1873 
1872 
1873 



1873 
1873 
1872 
1872 
1872 
1870 
1872 
1871 
1872 
1873 
1872 
1872 



Debt. 



£ 

346,926,906 
36,981,960 
12,747,589 

748,790,082 

67,356,837 
35,446,396 
14,964,133 
17,247,169 

784,972,103 
15,512,000 

360,807,407 
78,416,152 
72,833,000 

375,000,000 

261,475,000 

8,548,265 

855,866 

215,000,000 



15,036,303 

3,200,000 

90,000,000 

24,480,038 

5,288,950 

9,929,200 

5,990,108 

79,100,000 

40,720,000 

446,896,598 

10,600,000 

20,000,000 



Eevenue. 



£ 

57,086,432 

7,336,964 

2,287,392 

100,040,804 

31,506,520 
9,182,355 
2,030,046 
2,062,937 

76,608,770 
1,217,964 

61,933,401 
8,356,143 
4,103,421 

68,109,285 

27,901,746 
4,357,060 
1,026,200 

19,488,375 



3,721,324 

1,400,000 

9,258,621 

5,963,566 

1,854,984 

2,350,000 

97,000 

3,700,000 

5,898,235 

66,747,640 

1,017,160 

878,520 



Years of Revenue 

represented by 

Debt. 



Years. 

6 
5 

&i 
7 * 

2i 
4 

84 

10i 
12| 

6 

9* 

18 
5* 

2 

f 
11 



4 

2i 
10 

4 

3 

4 
62 
22 

7 

6* 
10 
23 



A CITIZEN OF THE UNITED STATES. 107 



CHAPTER V. 

THE CONSTITUTIONS OF THE SEVEKAL 

STATES. 

In this chapter the constitutions of the several States are not 
given in full, but the method of election and the tenure of office 
of the executive, legislative, and judicial officers ; their boundaries 
and area ; with notices of any interesting peculiarities in the consti- 
tution. To this is added a brief account of the history and present 
condition of each State. 

In this chapter the thirteen original States are arranged in geo- 
graphical order. The other twenty-four States are arranged in the 
order in which they were admitted to the Union. 

NEW HAMPSHIRE. 

This State is bounded north by Canada East, east by Maine and 
the Atlantic, south by Massachusetts, and west by Vermont, from 
which it is separated by the Connecticut river. It contains 9,280 
square miles, or 5,939,200 acres. 

Originally it adopted its constitution in 1784, and this has been 
amended at different times. By it the government of the State is 
vested in a governor, a council of five members, and a senate of 
twelve members, and a house of representatives. Every town hav- 
ing one hundred and fifty ratable polls chooses one representative, 
and one additional representative for every additional three hundred 
polls. All of the State officers are elected annually. No person 
can hold the office of governor, senator, or representative, unless he 
conforms to some denomination of Protestantism. The judges are 
appointed by the governor, with the consent of the council, and hold 
office during good behavior. 

This State has passed through many political fluctuations. It was 
first visited by Europeans in 1614, and a settlement was made near 
what is now Portsmouth. Nine years afterwards it was connected 
with Massachusetts as a district, and was in many points subject to 
the government of Massachusetts. In 1679 it was made a royal 
province In 1689 it was again joined to Massachusetts. After- 
wards it was for a short time connected with the colony or province 
of New York. In 1741 it was made a separate province or colony, 
and so it remained until the Revolution. 



108 THE POLITICAL RIGHTS OF 

The agriculture of New Hampshire is impeded by its climate ; 

nor is its soil in general very fertile ; but in many parts of the State 
there are excellent and productive farms. The water-powers of 
the State are numerous and important, and have been to a large 
extent utilized. There are many manufacturing towns, some of con- 
siderable magnitude. About 112,000 acres of the surface of this 
State are under water. 

MASSACHUSETTS. 

This State is bounded north by Vermont and New Hampshire, 

east by the Atlantic Ocean, south by the Atlantic, Rhode Island, 
and Connecticut, and west by New York. It contains 7,800 square 
miles, or 4,992,000 acres. 

The constitution of the State was originally adopted in 1780, 
and it has since been repeatedly changed. The government consists 
of a governor, lieutenant-governor, secretary, treasurer, auditor, attor- 
ney-general ; an executive council of eight members, over whom 
the lieutenant-governor presides, and who are elected annually ; a 
senate of forty members, and a house of representatives of two 
hundred and forty. All of these officers are chosen by the people. 
The judges are all appointed by the governor, with the consent of 
the council, and hold their offices during good behavior. They may 
be removed by impeachment ; and the governor, with the consent of 
the council, may remove them upon the address of both houses of 
the legislature. Each branch of the legislature, as well as the gov- 
ernor and council, have authority to require the opinions of the jus- 
tices of the supreme judicial court upon important questions of law, 
and upon solemn occasions. 

It is supposed that navigators from Iceland, in the year 1000, 
wintered at a place in the south-east part of Massachusetts and 
Rhode Jsland. The Cabots, sailing under a patent granted by Henry 
VII., King of England, sailed along the eastern cost of America, 
and made several landings ; and the English thereafter claimed the 
country, by the rights which accrued to them from the discoveries of 
the Cabots. There were many attempts at settlement along the 
New England coast ; but we consider the first permanent settle- 
ment to have been that of colonists who arrived in the "Mayflower" 
on the 22d of December, 1620, at Plymouth. Most of them had 
already fled from persecution in England, to Holland, where they 
had sought religious liberty. They formed a community in Leyden, 
of which John Robinson was pastor, and William Brewster an elder. 
But their surroundings were utterly unsatisfactory ; and they deter- 
mined to encounter the dangers and sufferings of a long sea-voyage, 



A CITIZEN OF THE UNITED STATES 109 

which were then much greater than they would be now, and the 
perils of hostile savages, famine, and sickness, in a mere wilderness. 

We have already stated that before landing they formed and 
subscribed a solemn compact, which may be considered, if not the 
foundation, at least the beginning, of our republican constitutions. 
The scarcity and bad quality of their food, and their exposure to the 
severity of weather which they were wholly unaccustomed to, killed 
half their number in little more than four months, and much en- 
feebled the survivors ; but they persisted in their purpose. There is 
much reason to believe that a severe pestilence, the nature of which 
is not known, had at that time thinned the natives along the coast of 
New England, and in some places almost exterminated them. But 
for this the colony could have hardly held their own. They were 
often near famishing, until 1628, when for the first time they had 
a plentiful harvest. In 1628 an immigration from England reached 
Salem, under the command of John Endicot. Large reinforcements 
soon followed, and Boston and neighboring towns were settled. These 
colonists were all Puritans ; and while they made the greatest sacri- 
fices and efforts to obtain religious freedom for themselves, there is 
no evidence that they acknowledged in any degree the duty of per- 
mitting religious freedom in those who differed from them. 

As the colony of Massachusetts rapidly grew in numbers and 
prosperity, it attracted the attention of England, and there were 
attempts to annul the original charter, under which the colonists 
had emigrated. Many difficulties ensued, and in 1675 began the war 
with the Indians, called King Philip's war, which desolated a large 
part of the then settled country. Of a population of about 12,000, 
one man in twenty had died ; and of the families, one in twenty were 
houseless. This war was conducted without assistance from England ; 
but as soon as it ceased, pretensions were again asserted to a master- 
ship over the colony. When, in 1689, reports were received of the 
English revolution of 1688, the men of Boston, with some from the 
neighboring towns, rose in arms and imprisoned the royal governor 
and other officers. In 1692 a new charter was given, by which 
Plymouth was united to Massachusetts, and the jurisdiction of that 
colony over Maine and other colonies acknowledged. In the same 
year the witchcraft delusion, which had raged in many European 
countries and was then active in some, began in Salem and its 
neighborhood, and nineteen persons were executed by hanging, and 
one was pressed to death. 

The war of the Revolution began in Massachusetts, at Lexington 
and Concord ; but from the very beginning the other colonies sym- 
pathized with and supported her, and as soon as possible all joined 
in efforts to achieve their independence. 



110 THE POLITICAL RIGHTS OB 

This State is said to be naturally the least fertile of the K"ew 
England States ; but skilful and laborious cultivation has much im- 
proved large tracts of land. It is estimated, however, that much 
less than half of the total area of the State is under cultivation. 
The State depends mainly, though not wholly, upon its manufact- 
ures and its commerce. In manufactures it is said to stand at the 
head of all the States. The water-powers afforded by the Merri- 
mac and smaller streams are everywhere utilized to their full 
extent ; and of late years steam-power has been profitably used, 
partly in aid of water-power, and in some instances by itself. 

RHODE ISLAND. 

This State is bounded north and east by Massachusetts, south by 
the Atlantic Ocean, and west by Connecticut. It contains 1,306 
square miles, or 835,840 acres, of which less than half are improved. 

This State was at first embraced within the charters of Massa- 
chusetts; so, at least, it was asserted; but in 1662 a separate charter 
was granted, incorporating the colony of Rhode Island and Provi- 
dence plantations ; and under this the political institutions of the 
State existed and were conducted until 1843, when a new constitu- 
tion was formed. 

By this constitution the government consists of a governor, a 
lieutenant governor, secretary of state, treasurer, and attorney-gen- 
eral, all of whom are elected by the people annually. An auditor is 
also elected by the assembly. The senate consists of the lieutenant- 
governor, and one senator from each of the thirty-four towns in the 
State. The governor presides in the senate. The house of repre- 
sentatives consists of seventy-two members, which number cannot 
be exceeded. The legislature is called the general assembly ; and 
the assent of two-thirds of the members elected to each house of 
the general assembly is required to every bill appropriating the pub- 
lic money or property for local or private purposes. 

The judges are elected by the general assembly, the justices of 
the peace by the towns and city. The judges hold office until their 
place is declared vacant by a resolution of the general assembly. 

This State was founded, to its honor be it said, on the principles 
of entire religious liberty. Roger Williams, who maintained, both 
in politics and religion, opinions which did not conform to those 
which were held by the ruling powers of Massachusetts, was banished 
from that colony. They would have sent him to England ; but he 
unexpectedly left Salem in the midst of the winter, and took refuge 
with the Indians, with whom he remained some months, when, with 
five companions, he sailed in a log canoe to the spot where he fixed 



A CITIZEN OF THE UNITED STATES. Ill 

his habitation. To this spot he gave the name of Providence, in 
acknowledgment of " God's merciful providence to me in my dis- 
tress." Here it was that Williams proclaimed what was then a new 
doctrine, and has now become the doctrine of this great nation ; 
namely, that no magistrates or other civil authorities have any right 
to prescribe, enjoin, or regulate religious belief. He was soon fol- 
lowed by others, who were persecuted as he had been, and the 
colony rapidly grew in population. It suffered severely from King 
Philip's war; and this Indian chief was killed in 1676, in a swamp 
near Mount Hope, on Naragansett Bay. 

The climate of the whole State is perhaps the best in New Eng- 
land, especially in Newport and its vicinity. Its soil is only moder- 
ately fertile, and is on the whole better adapted for grazing than for 
the cultivation of cereals. The State has but a small foreign com- 
merce, but its coasting trade is large. The manufactures of the 
State are very various, extensive, and profitable. 

CONNECTICUT. 

This State is bounded north by Massachusetts, south by Long 

Island Sound, east by Rhode Island, and west by New York. It 
contains 4,750 square miles, or 2,940,000 acres. 

The constitution was adopted in 1818, and has since been 
amended. The governor (who must be thirty years of age), lieu- 
tenant-governor, secretary of state, treasurer, and comptroller, are 
chosen by the people annually. The legislature is called the general 
assembly. It consists of a senate of twenty-one members, and a 
house of representatives, which consists of two representatives from 
each town incorporated before 1785. The chief peculiarity of this 
constitution is in the narrow limit of the power which the governor 
possesses. If he disapproves a bill, the two houses may pass them 
by a majority over his veto. He makes very few important appoint- 
ments. He may grant a temporary reprieve to a convicted criminal, 
but cannot pardon him, as the pardoning power is vested in the 
general assembly. The judges are chosen by the general assembly, 
and hold office for eight years. The judges of probate are chosen 
annually by the people. Justices of the peace are chosen biennially 
by the people of the town in which they reside. Judicial officers 
are not retained after the age of seventy years. The duty of wor- 
ship of a Supreme Being is acknowledged, but entire liberty of con- 
science as to the manner of it permitted. 

The early history of this State is somewhat intricate. The first 
settlement by white men was made in 1632, from Plymouth ; but 
the Dutch claimed the country as a part of the New Netherlands, 



112 THE POLITICAL RIGHTS OF 

and purchased of the Indians the land on which Hartford now 
stands, and built there a trading-house and fort in 1633. The same 
year an expedition from the colony at Plymouth sailed up the Con- 
necticut, and, passing by the Dutch fort, built their trading-house in 
Windsor. In the mean time several companies from Massachusetts 
prepared to settle along the Connecticut, and went there in the year 
immediately succeeding. During this same period, John Winthrop, 
under a commission from the patentees, Lord Say and Seal, Lord 
Brook, and others, built a fort at the mouth of the Connecticut 
River. In the midst of these conflicting claims and settlements the 
Pequot Indians attacked the colonists with great violence ; but in 
the short war which followed, this tribe was almost annihilated. 
New Haven was settled in 1638, by a company which consisted 
mostly of Londoners, who at home had been traders, and brought 
with them much wealth. Not until 1665 were the colonies of Con- 
necticut and New Haven united. But a charter had been granted by 
Charles I. in 1662. This charter continued in force until the declara- 
tion of independence in 1776, and then continued to be the constitu- 
tion of the State until 1818, when the present constitution was formed. 

There are many manufactories, most of which are of moderate 
extent ; but the manufacture of rifles, revolvers, and other fire-arms, 
is very large ; and in other establishments, axes, carriages, and agri- 
cultural and mechanical implements, are made in great quantities. 

The commerce of the State is not large, and is mainly carried on 
through New York. From New London and Stonington whaling 
expeditions were formerly fitted out in great numbers; but this 
business has of late years much declined. 

NEW YORK. 

This great State is bounded north by Canada and Lake Ontario, 

east by Vermont, Massachusetts, Connecticut, and the Atlantic, 
south by the Atlantic, New Jersey, and Pennsylvania, and west 
by New Jersey, Pennsylvania, Lake Erie, and Canada. It contains 
47,000 square miles, or 30,080,000 acres. 

The constitution was first formed in 1777, and it has been repeat- 
edly amended. 

The governor and lieutenant-governor, the secretary of state, 
comptroller, treasurer, and attorney-general, are elected by the 
people, every two years, by a plurality vote, — the governor and 
lieutenant-governor on one year, and the other officers on the alter- 
nate years. The canal commissioners and inspectors of state prisons 
are (by statute) elected for three years, one for each year. The 
canal appraisers are appointed by the governor, with the consent of 



A CITIZEN OF THE UNITED STATES. 113 

the senate, for three years. The superintendent of public instruc- 
tion is elected by the legislature for three years. All the judges 
and justices are elected by the people. There are seven judges of 
the Court of Appeals, and thirty- three justices of the Supreme Court, 
so called, although the Court of Appeals has power to correct and 
reverse the proceedings of the Supreme Court. The judges of the 
Court of Appeals and Supreme Court hold office for fourteen years. 
The county judges are elected for six years. 

In 1609, Henry Hudson, an Englishman employed by the Dutch 
East India Company, discovered the river which bears his name, up 
which he sailed near to the site of Albany. Because this land was 
discovered by a navigator in their employ, it was claimed by Hol- 
land, and named the New Netherlands. Many and sometimes 
bloody were the conflicts between the Dutch settlers and the 
Indians about them, with the English upon the Connecticut, and 
with the Swedes upon the Delaware. The English claimed the 
New Netherlands as a part of Virginia, founding their claim upon 
the earlier discovery by Cabot. In 1664 Charles II. granted to his 
brother, the Duke of York, a charter which included the New 
Netherlands and a part of the territory which had been previously 
granted to Connecticut, Massachusetts, and New Hampshire. The 
duke proceeded at once to take possession of the territory, and in 
the same year an English force reached New Amsterdam and 
demanded its surrender. This demand was complied with from 
utter inability to resist, and the whole country passed at once into 
the possession of the English, quietly and permanently ; for although 
New York was afterwards for a short time held by the Dutch, it 
was almost immediately again surrendered to the English. Names 
were changed. New Amsterdam became New York, w T hich name 
was also applied to the whole territory, and Fort Orange became 
Albany. The earliest government of the English was exceedingly 
obnoxious to the people; and the revolution which placed William 
and Mary on the throne of England in 1689 was regarded by 
the people as full of promise for them; but large estates had 
been granted, and manorial rights acquired which continued in 
force for nearly two centuries, and were then with some difficulty 
removed. 

The territory about the city of New York was almost constantly 
involved in the hostilities which belonged to the War of Indepen- 
dence ; and the Revolution, in fact, closed by the evacuation of New 
York by the British in 1783. During the first years after our inde- 
pendence, this State grew, if not slowly, at least no faster than its 
sister States. But the great Erie Canal, first proposed in 1800, 
actually begun in 1817, and finished in 1825, which brings the water 

8 



114 THE POLITICAL RIGHTS OF 

of Lake Erie to the Hudson in an almost straight line through the 
centre of the State, began at once to give to the State the promi- 
nence and prosperity which it has ever since enjoyed. The city of 
New York became the commercial head of the Western continent. 
About six-sevenths of the tariff revenue of the whole country are 
collected at the custom-house of New York City. Numerous rail- 
ways covering the State help to bring to her the traffic of the t\ hole 
country. 

The manufactures of the State are various and extensive, and 
the list of them embraces almost all the important works of human 
production. 

Its agriculture does not fall behind its commerce or its manufact- 
ures. Its climate is said to possess a wider range than that of any 
other State in the Union. But away from the mountains and its 
northernmost regions, it is generally mild ; and through the greater 
part of the State both soil and climate are well adapted to the culti- 
vation of the principal crops and fruits of the temperate zone. The 
lands along its rivers, especially the Mohawk, are singularly rich ; or 
were so, until long cultivation without the restorative help of man- 
ures had produced its inevitable effect, and lessened the production 
of wheat to the acre one-half, and this is their principal crop. 

NEW JERSEY. 

This State is bounded north and north-east by the State of New 

York, east by New' York Bay and the Atlantic Ocean, south by the 
Atlantic and Delaware Bay, west by Delaware and Pennsylvania. 
It contains 8,320 square miles, or 5,331,000 acres. 

It adopted a State constitution in 1776. It has since been 
amended. The governor is chosen for three years, by a pluiality 
vote, and cannot be chosen for the term next succeeding, and must 
have been twenty years a citizen of the United States. There is 
no lieutenant-governor. The secretary of state is appointed by the 
governor, with the consent of the senate, for five years. The treas- 
urer is elected by the legislature for one year. The superintendent 
of schools is appointed by the trustees of the school fund for two 
years. The senate consists of twenty-one members, who are elected 
for three years, one-third each year. The house of representatives 
consists of sixty members, who are elected each year. The Su- 
preme Court consists of seven justices, who hold office for seven 
years, and are appointed by the governor. The chancellor is also 
appointed by the governor, and for the same period. The Court of 
Errors and Appeals . consists of the chancellor, the justices of the 
Supreme Court, and six other judges, whom the governor appoints 
for six years, one judge going out of office each year. . 



A CITIZEN OF THE UNITED STATES. 115 

The earliest colony upon this territory was founded probably 

about 1620, by the Dutch of New Amsterdam, who claimed the 
whole country as a part of the New Netherlands. Small colonies 
of Swedes and Finns settled in the same region. The Dutch and 
Swedes drove out the English colonists, and afterwards the Dutch 
drove out the Swedes. In 1664, Charles II., of England, granted 
all the territory between the Delaware and Connecticut Rivers to 
his brother, the Duke of York, who sent out an expedition to take 
possession of it. New Amsterdam yielded without resistance, and 
the New Jersey settlements immediately submitted. A patent was 
then granted by the first English governor to immigrants from Long 
Island and New England, and many settlements were made. In 
the following years there were many questions and some conflicts 
as to whether the proprietors or the king held the title. They were 
at length settled, the colony being divided into East Jersey and 
West Jersey. In 1682 the whole territory was bought by William 
Penn and eleven other Quakers. They opened it as an asylum for 
the persecuted believers of his creed, and for a time it enjoyed 
much prosperity ; but in 1702 the proprietors surrendered the right 
of government to the crown, and so it remained until the Revolu- 
tion. 

As a whole, this State is well adapted, both by soil and climate, 
for agriculture. The central region is a vast market garden, which 
supplies New York and Philadelphia, and even more distant cities. 

Its manufactures have of late been considerably developed, and 
its manufacturing establishments are numerous, varied, and success- 
ful. Its fisheries, especially of shad and oysters, are very profitable. 
Its commerce with foreign countries is considerable, but is mainly 
conducted through New York or Philadelpnia. Its mining indus- 
tries are very important and valuable, especially in iron, marls, and 
zinc. Indeed, it is said that its zinc mines yield more than all the 
zinc mines of Great Britain, and much more than half the zinc 
products of the United States. 



PENNSYLVANIA. 

This State occupies nearly the centre of the thirteen original 

States, and from this position as well as from its importance, is often 
called the Key-stone State. It occupies a nearly perfect parallelo- 
gram, bounded north by Lake Erie and New York, south by Del- 
aware and Maryland, west by West Virginia and Ohio, and east by 
New York and New Jersey. It contains about 46,000 square miles, 
or 29,440,000 acres. 



116 THE POLITICAL RIGHTS OF 



Its constitution has recently been amended. The governor and 

lieutenant-governor are elected for four years, by a plurality vote, 
neither being eligible for the next succeeding term. The secretary 
of the commonwealth and attorney-general are appointed by the 
governor during pleasure ; and a superintendent of public instruc- 
tion is appointed by him for four years. The secretary of internal 
affairs for four years, the auditor-general for three years, and the 
State treasurer for two years, are elected by the people. The two 
last named cannot hold the same office for two consecutive terms. 

The judges are elected by the people : those of the Supreme Court 
for twenty-one years, and they are not eligible for a second term ; 
those of the inferior courts for ten and five years. Justices of the 
peace are elected for five years. 

The senate and house of representatives constitute the general 
assembly. Senators, fifty in number, are chosen for four years. 
Representatives are apportioned on the population of the counties 
by a ratio obtained by dividing the State by two hundred. Every 
county containing less than five full ratios has one representative 
for a full ratio, and one more if the surplus is more than half a 
ratio. Every county containing five ratios or more has one repre- 
sentative for a full ratio. The representatives are chosen for two 
years. 

An elected officer must swear that he neither paid money nor 
any thing of value to procure his nomination or election, and that 
he will not accept extra official pay for performing or non-perform- 
ing his official duty ; false swearing in this respect is punishable 
as perjury, and any candidate thus or otherwise violating an election 
law shall be forever disqualified from holding office. Any woman 
twenty-one years old is eligible to any school office. No State debt 
shall ever be created except to supply casual deficiencies in the rev- 
enue, and then not to exceed one million of dollars, or to repel in- 
vasion, suppress insurrection, for defence in time of war, or to pay 
existing debt. 

The history of this great State is exceedingly peculiar. Early 
settlements by Swedes and Finns were made upon the Delaware ; 
then the Dutch acquired the dominion, and soon afterwards the 
English. But in 1681 a grant from Charles II. to William Penn 
included territory nominally at least covered by the ill-defined 
grants already made to Virginia, Maryland, and the colonies of New 
England. But the boundary between Pennsylvania and Maryland 
was finally settled by the famous Mason and Dixon's line. This 
line was, in the days of slavery, repeatedly referred to, because it was 
the dividing line between the free and the slave States of the original 
thirteen. Charles Mason and Jeremiah Dixon, Englishmen distin- 



A CITIZEN OF THE UNITED STATES. 117 

guished for their knowledge of mathematics and astronomy, began 
in 1763 .the line they were employed to lay down, and ended it at a 
point two hundred and forty-four miles from the Delaware, where 
they were stopped by the Indians, who ordered that the survey 
should go no farther. The commissioners yielded to the prohibi- 
tion, and returned to Philadelphia. Stones were sent from Eng- 
land, and planted at every mile. This line closed a border war 
which had been kept up at intervals for almost a century. William 
Penn, the Quaker, founded his colony upon a perfectly peaceful 
policy. His justice, integrity, and firmness deeply impressed the 
savages ; and the consequence was that while we read in the history 
of the other original States much about wars with the Indians, and 
various disasters, Pennsylvania enjoyed an unbroken peace with 
them, until the beginning of the revolutionary war. 

What is now Delaware was for a long time a part of Pennsyl- 
vania, and constituted the "Lower Counties." Philadelphia grew 
rapidly in population and prosperity, and from its importance and 
central position was the seat of the Continental Congress and of the 
general government, until 1800. Independence was proclaimed 
there ; and the whole colony bore a decided and important part in 
the war of the Revolution. The names of Brandy wine, Germantown, 
and Valley Forge will never be forgotten. In 1750 a large German 
immigration began, and great numbers of that people mingled with 
the Friends, or Quakers, who were there settled ; and afterwards many 
persons from the North of Ireland, of Scotch origin, came into the 
colony, and were spread widely over it. 

This large State is, through a great part of its territory, success- 
fully cultivated. Its foreign commerce is very large, a good part 
of it being carried on through the port of New York. Its internal 
trade over its numerous railroads and canals has reached a great 
extent, and is now rapidly growing. But perhaps the State is most 
remarkable for its mining industries. The deposits of coal within 
its limits, especially anthracite, are of an enormous extent, and 
generally very accessible. With the coal beds are mingled beds 
of iron ore, which are very largely worked ; and it may be said, 
indeed^ that for both coal and iron the State of Pennsylvania is one 
of the most productive countries in the world. Petroleum and salt 
are also obtained in large quantities. 

DELAWARE. 

This State is bounded north by Pennsylvania, west and south by 
Maryland, and east by Delaware Bay and the Atlantic. It contains 
2,120 square miles, or 1,306,800 acres. 



118 THE POLITICAL RIGHTS OF 



By the constitution of Delaware the governor must be thirty 
years of age, and have been a citizen and inhabitant of the. United 
States twelve years next before the first meeting of the legislature 
after his election, and the last six of that term an inhabitant of the 
State. He is chosen for four years. The secretary of state is 
appointed by the governor for the same period. The attorney- 
general is appointed by the governor, and holds office five years. 
The state treasurer and auditor are chosen by the legislature for 
two years. The senators and representatives are appointed accord- 
ing to population. The number of senators shall never be more 
than one-half, nor less than one-third, the number of representa- 
tives. The judges are appointed by the governor, and hold office 
during good behavior. 

Delaware was first settled by Swedes and Finns in 1638, and was 
successively held by the Dutch in the New Netherlands, and by the 
English of New York; afterwards by Lord Baltimore, under a 
grant from the King of England. Then William Penn included it 
with Pennsylvania, until in 1703 the territory now constituting the 
State of Delaware obtained liberty to separate, and was allowed a 
distinct assembly, but not a governor. The proprietors of Pennsyl- 
vania, however, retained all their rights until the Revolution began, 
and the same governor presided over Pennsylvania and Delaware. 
In 1776 the inhabitants declared themselves an independent State, 
and framed a constitution. This was superseded in 1792 by another 
constitution, which has been frequently amended. 

Both the climate and soil are favorable to agriculture. The 
flouring mills on the Brandywine are very important. At Wil- 
mington there are extensive manufactories of steam machinery, rail- 
road cars, and steamers ; and many vessels of various descriptions 
are built and fitted out. The commerce of the State is not large. 

MARYLAND. 

This State is bounded north by Pennsylvania, east by Delaware 

and the Atlantic Ocean, south and south-west and west by Virginia 
and West Virginia. It contains 11,124 square miles, or 7,119,360 
acres. 

By the constitution of Maryland, the governor is chosen by a 
plurality of votes, for a period of four years. There is no lieutenant- 
governor. The senate consists of three members from the city of 
Baltimore and one senator from each county in the State, who are 
chosen for four years. The house of delegates consists at present of 
eighty members. It is founded upon population, and may vary in 
number. The secretary of state, the treasurer, and the comptroller are 



A CITIZEN OF THE UNITED STATES. 119 

appointed by the governor. The judges of the Court of Appeals and 
the Circuit Courts are elected by the people for fifteen years, or until 
they shall reach the age of seventy years. Other judges for a less 
period ; and justices of the peace for two years. Sheriffs and con- 
stables are chosen for two years. County attorneys are chosen in 
each county by the people for four years. 

The first settlement of Maryland was made by a party from Vir- 
ginia in 1631 ; the next year a charter was granted to Lord Baltimore 
by Charles L, and under this the colony was permanently established. 
The first colonists were nearly all Roman Catholics, as was Lord 
Baltimore, the proprietary. In 1642, a company of Puritans from 
Virginia, who had been expelled from that State for their religious 
opinions, settled at what is now Annapolis, in Maryland, and before 
long endeavored to resist Lord Baltimore, the proprietary. The two 
parties maintained a conflict with each other, with varying success ; 
and in 1649, when a governor appointed by the proprietary had 
recovered possession, an act was passed introducing a principle which 
had never before been recognized as a public law in the history of 
mankind, but which is now the law, not only in Maryland, but 
through the whole country. For by this act it was declared that 
Christians of all sects might worship God according to the dictates 
of their own conscience, and make a public profession of their faith 
in safety. The opposite parties, Puritans and Catholics, continued 
the conflict, which was attended at times by actual hostilities. King 
William, when he came- to the throne of England in 1688, assumed 
the government of the colony, in disregard of the rights of all 
parties among the colonists. But in 1714, the Lord Baltimore of 
that day having been educated as a Protestant, his rights and au- 
thority as proprietary were restored to him, and were not again 
disputed until the Revolution. Annapolis was the seat of gov- 
ernment, Baltimore not being laid out until 1729; and it was to the 
Congress assembled at Annapolis that Washington resigned his 
commission in 1783. 

In agriculture and its products this State holds a respectable 
but not an eminent position. Much the same thing may be said of 
its manufactures ; although it has many prosperous manufacturing 
establishments, of which the flouring- mills are the most numerous. 
Its commerce is very large, including both its foreign and coasting 
trade, Baltimore, the principal port of the State, having a great 
amount of tonnage, and an extensive and varied commerce. 



120 THE POLITICAL RIGHTS OF 



VIRGINIA. 

This State is bounded north by Maryland, east by Maryland 
and the Atlantic, south by North Carolina and Tennessee, and west 
by Kentucky and West Virginia. It contains about 38,352 square 
miles, or 24,545,280 acres. 

By its constitution, a governor, lieutenant-governor, and attorney- 
general are elected by the people for four years ; and the governor 
cannot be elected for two consecutive terms. No person of foreign 
birth is eligible to the office of governor, unless he has been a citizen 
of the United States for ten years next preceding his election. The 
governor must be thirty years of age, and have been a resident of 
the State for three .years next preceding his election. The secre- 
tary, treasurer, auditor, and register of the land-office are elected by 
the general assembly of the State, for two years. The three mem- 
bers of the board of public works are elected by the people for six 
years, one leaving office every two years. The senate consists of 
fifty members, elected for four years ; and the house of delegates 
of one hundred and fifty-two members, elected biennially : the dis- 
tricts from which the delegates are chosen being apportioned on the 
basis of population, and those from which the senators are elected 
are apportioned on the basis of publication and taxation combined. 
The sessions of the legislature are biennial. No session can con- 
tinue more than ninety days, unless three-fifths of all the members 
vote therefor; and cannot be, in any case, extended more than thirty 
days in addition to the ninety. The judges are elected by the peo- 
ple : in the Circuit Courts for eight years, and in the County Courts 
for four years. Votes are given not by ballot, but viva voce. 

Virginia was the first colony settled by the English in America. 
Jamestown, on the northern bank of James River, was founded in 
1607, by about one hundred colonists, sent out by a London com- 
pany. At this time almost the whole sea-coast of North America 
was called Virginia ; and to this company James I. granted South 
Virginia, and the territory north of it was called North Virginia. 
These colonists were not all of good character; but a bright spot 
in the story comes from the courage, ability, and energy of the 
celebrated Captain John Smith, who is regarded as the founder 
of Virginia. This man had passed through the most romantic ex- 
periences in Europe ; and all are familiar with the still more romantic 
story of Pocahontas, the Indian princess, who saved his life, at 
the peril of her own, when threatened by her angry father, King 
Powhatan. Unfortunately the criticism of modern times has re- 
duced this story within very narrow limits. Powhatan was the chief 



A CITIZEN OF THE UNITED STATES. 121 

of a powerful tribe possessing the country, and his daughter, 
Pocahontas, informed Smith of a plot of her father to destroy 
him. She often visited the English ; and an English captain of a 
vessel held her as a hostage, while he treated with Powhatan 
for peace. While on shipboard, an attachment grew up between 
her and an Englishman named John Rolfe. She was baptized, and 
they were married in 1613 ; and peace between the English and the 
Indians was caused by this marriage, and continued for many years. 

There were many successive efforts to people Virginia, which 
were but imperfectly successful for a considerable time, in part from 
dissensions among the colonists, and in part from the attacks from 
the Indians after the death of Powhatan. In 1622 the number of 
the colonists was reduced from four thousand to two thousand five 
hundred, by sickness, famine, and Indian murders. After great 
pecuniary loss, the Virginia Company was dissolved in 1624, and 
thereafter the colony was in the hands of the king. A more pros- 
perous condition soon began. In 1671 the population amounted 
to forty thousand, the Indians were completely subdued, and the 
cultivation of tobacco was found to be extremely profitable. In 
the matter of education, the colony stood in strange contrast to the 
New England colonies. There, about the first thing done was to 
establish schools as soon as possible. But the royal governor of 
Virginia, writing in 1761, says : " I thank God there are no free 
schools nor printing, and I hope we shall not have any these hundred 
years ; for learning has brought disobedience and heresy and sects 
into the world, and printing has divulged them and libels against 
the best government. God keep us from both." 

The colony continued to prosper, the royal governors being, for 
the most part, men of high rank. A war with the French broke out 
in 1754 ; and George Washington entered the service, accompanied 
Braddock in his disastrous campaign, and, after that general's de- 
feat in 1755, was placed at the head of the Virginian army. The 
assumption by the British parliament called forth an opposition in 
Virginia, as in Massachusetts. At that time the commerce of that 
colony with Great Britain was larger than that of any other colony. 
But she did not hesitate to sacrifice it in her determination to resist 
the oppression of England, and afterwards to maintain the inde- 
pendence of these colonies. This State was, in fact, the earliest 
to urge an organized confederacy of the States which had been col- 
onies. For many years after the federal constitution Virginia 
maintained her predominant influence. Four out of the first five 
presidents were natives of that State, and resided therein ; and each 
of them was re-elected for a second term. Since that time her 
commerce has mainly consisted of the exports of her agricultural 



122 THE POLITICAL RIGHTS OF 



productions, the most important of which is tobacco. The culti- 
vation of this article has exhausted a large part of her best soils ; 
but not so far that their fertility cannot be restored, as experiments 
have proved. The cereals are also largely grown, especially in the 
valleys in the middle and western portions of the State. There 
are manufactories of cotton and of iron, as well as of flour. A large 
amount of coal is also produced, and an almost equal value of salt. 
The oyster-beds in the Chesapeake Bay are exceedingly productive 
and valuable. 



NORTH CAROLINA. 

This State is bounded north by Virginia, west by Tennessee, south 

by Georgia, South Carolina, and the Atlantic, and east by the At-* 
lantic. It contains about 50,000 square miles or, 32,000,000 acres. 

The constitution now in force was adopted in 1868. The gover- 
nor, lieutenant-governor, secretary of state, treasurer, auditor, attor- 
ney-general, superintendent of public instruction, and superintendent 
of public works, are elected by the people, and hold office for four years. 
The senate consists of fifty members, and, with the representatives, 
one hundred and twenty in number, are chosen biennially; and are 
apportioned from among the counties, according to population. The 
judges are elected by the people, those of the Supreme Court and 
the Superior Courts for eight years. A solicitor is chosen by the 
people for each judicial district, and holds office for four years. In 
each county a sheriff and coroner are elected by the people, each 
for two years. 

There was an attempt at a settlement on an island between 
Pamlico and Albemarle Sounds as early as in 1585, by a party sent 
out by Sir Walter Raleigh, which returned the next year. Other 
colonies sent out by Raleigh disappeared, and were supposed to have 
been slain by the Indians. It was not until the middle of the next 
century that a successful colonization was effected. The famous 
John Locke prepared a plan of government for the whole province, 
which then included what is now South Carolina. This plan was 
no doubt extremely philosophical ; but a few years' experience 
proved that it was so complicated and unpractical that it could not 
be carried into effect. But the population grew, though not very 
rapidly. The colony passed through divers vicissitudes and con- 
flicts, arising in part from dissensions among the colonists, and in 
part from the attacks of the savages, which have to be mentioned 
in the history of most of the original States. 

Not long before the Revolution its population gained a consider- 
able accession from a colony of Presbyterians from the north of 



A CITIZEN OF THE UNITED STATES. 123 

Ireland, from a company of Moravians, and from a party of High- 
landers. In the years immediately preceding the War of Independ- 
ence the patriots were much embarrassed and impeded by the 
loyalists, who were numerous and earnest ; but they prevailed at 
length, and the State joined the confederacy. The Constitution of 
the United States was rejected by this State in 1788, but was 
adopted the next year. 

The climate, the soil, and the products of this State are exceed- 
ingly varied; nor can it be said that commerce, manufactures, and 
mining are extensive, although all are carried on to some extent, 
and are now said to give indications of growth and prosperity. 
A most important branch of the manufacture of the State is that of 
turpentine, tar, and rosin, of which immense quantities are exported, 
a very large extent of territory in the State being covered by the 
species of pine which yield these products. 

SOUTH CAROLINA. 

This State is bounded north by North Carolina, east and south- 
east by the Atlantic, west and south-west by Georgia. It contains 
34,000 square miles, or 21,760,000 acres. 

The constitution now in force was adopted in 1868. The gov- 
ernor and lieutenant-governor are elected biennially by the people, 
and must each be thirty years old, and have resided in the State 
two years. The comptroller-general, treasurer, and secretary of 
state, are elected for four years. The senate consists of thirty-one 
persons, one member from each county or district, except the county 
of Charleston, which sends two. The house of representatives con- 
sists of one hundred and twenty-four members, who are apportioned 
among the counties according to population. Senators must be 
twenty-five years old, and hold office for four years, one-half being 
chosen every second year. Representatives must be twenty-one 
years of age, and hold office for two years. The judges of the Su- 
preme Court and of the Circuit Courts are elected by the general 
assembly, the former holding office for six years and the latter four 
years. The probate judges are elected by the people in each county, 
for two years. 

This constitution declares that every citizen of this State owes 
paramount allegiance to the constitution and government of the 
United States, and no law or ordinance of this State in contraven- 
tion or subversion thereof can have any binding force. It also pro- 
vides that no person shall be eligible for the office of governor who 
denies the existence of the Supreme Being. 

The first attempt at peaceful colonization in South Carolina was 



124 THE POLITICAL RIGHTS OF 

made by French Huguenots, in 1562 ; but it failed, the colonists 
returning to France ; nor was there a permanent settlement made 
until English colonists settled at Port Royal, in 1670. They re- 
moved in 1680 to Charleston. Not long after, a large number of 
French Huguenots, followed by Swiss, Irish, and German emigrants, 
settled in the colony. It suffered heavily from the Indians, and 
from some conflicts with the Spanish settlements in Florida. Dur- 
ing the revolutionary war many important battles were fought 
within this State, with varying success ; and during 1780, and most 
of 1781, the British held the territory. 

There are some successful manufacturing establishments in the 
State, but it is essentially agricultural. Very little of its soil is waste 
land, both land and climate being excellently adapted to cotton, 
rice, and tobacco, while wheat is very little grown. All the other 
products proper to a warm climate are raised in great quantities. 
This State suffered more perhaps than any other from the late war, 
and from the changes resulting therefrom. Nor can it be said to 
be now in a prosperous condition. The commerce of Charleston 
was very large before the war, and appears to be now reviving. 
Cotton and rice were the most important productions of the State, 
and are so now. 

GEORGIA. 

This State is bounded north by Tennessee and North Carolina, 

west by Alabama and Florida, south by Florida, east by the Atlan- 
tic, and north-east by the Savannah River, by which this State is 
separated from South Carolina. It contains 58,000 square miles, 
or 37,120,000 acres. 

The constitution now in force was adopted in 1868. The gov- 
ernor, secretary of state, treasurer, comptroller-general, and surveyor- 
general, are elected by the general assembly, and hold office for four 
years. The senate consists of forty-four members, who hold office 
for four years, one-half of whom are elected every two years. The 
house of representatives consists of one hundred and seventy-five 
members, who hold office for two years. The judges of the Supreme 
and Superior Courts, and of the District Courts, the attorney-gen- 
eral, the solicitor-general, and the district attorneys, are appointed 
by the governor, with the consent of the senate. Justices of the 
peace are elected by the people in their respective districts. The 
judges of the Supreme Court hold office for twelve years, of the 
Superior Court eight years, and of the District Courts four years. 
The Court of Ordinary (or Probate) consists of an ordinary from 
each county, chosen by the people, and holding office four years. 



A CITIZEN OF THE UNITED STATES. 125 

Justices of the peace hold office four years. The district attorneys 
hold their office for the same period as the district judges. 

Georgia was the latest settled of the thirteen original States. 
The territory was comprehended within the charter of Carolina, 
but was claimed by Spain as a part of Florida. In 1732 George II. 
made a grant of it to a corporation called " Trustees for settling the 
Colony of Georgia." Previous to that time it was a mere wilder- 
ness, imperfectly explored, and without any settlement. General 
Oglethorp was in charge of the first immigration. The progress of 
the colony was at first slow. The restrictions on the land-grants 
annoyed the colonists, and many of them removed to Carolina. 
These restrictions were removed, and fifty acres were offered to 
each settler in fee-simple ; and the colony soon received large acces- 
sions, most of the immigrants coming from Scotland or from Ger- 
many. In 1739 war broke out between England and Spain, and 
Florida was unsuccessfully invaded by troops from Georgia and 
South Carolina. Immediately afterwards Georgia was invaded by 
the Spanish, with no better success. Internal dissensions then pre- 
vailed, and the trustees concluded to surrender their charter to the 
king. In 1752 Georgia passed under the government of the crown ; 
and the same rules were established as to the possession of lands 
and slaves that existed in the other colonies. In 1763 the King of 
England annexed to Georgia, by his proclamation, all the lands 
between the rivers Altamaha and St. Mary's. In the twenty- three 
years which followed the assumption of the territory by the crown, 
its population was increased eightfold, and its commerce in still 
greater proportion. When the war of the Revolution broke out, 
this colony joined the others at once, and remained steadfast to the 
cause of independence, although the British troops overran most of 
its settled territory, and drove many of the inhabitants from their 
homes. 

After the independence of this country was established, Georgia 
suffered very much from the Creeks and Cherokees. The charter 
of Georgia extended to the Pacific, like those of many of the colo- 
nies ; but in 1791 a treaty was formed with those Indians, by which 
the western boundaries to the State were defined. Subsequently the 
Indians ceded a large territory to the United States ; and Georgia 
ceded to the United States all its claims to the territory west of its 
present limits, where are now Alabama and Mississippi. Difficulties 
between the State and the Indians in the western part of it con- 
tinued, and caused great difficulties, until in 1838 the national gov- 
ernment removed the Indians to the Indian Territory, when Georgia 
came into undisturbed possession of the lands which they had occu- 
pied, which now form the south-west counties of the State. Previ- 



126 THE POLITICAL RIGHTS OF 

ous to the late war Georgia was almost exclusively a cotton-growing 
State, the sea-island cotton growing upon islands on its coast and 
on some parts of the main-land being of especial value. In this 
State was also raised a large quantity of rice ; and its large produc- 
tion of all these articles gave to it a valuable commerce. Gold 
occurs almost everywhere in the State, but not in quantities which 
have as yet permitted very valuable working. 

Since the termination of the war many valuable manufactories, 
especially of cotton, have been established in the State ; and their 
success gives reason to believe that Georgia will eventually hold a 
high place among the manufacturing States. 

We have now completed the list of the thirteen original States. 
The national constitution provided that the ratification of nine 
States should be sufficient for the establishment of the constitution. 
Eleven States ratified the same before it went into operation in 
March, 1789. The other two States did not ratify the constitution 
until afterwards: North Carolina in November, 1789, and Rhode 
Island in May, 1790. These two States were not, however, treated 
as new States, requiring special acts of admission ; but their senators 
and representatives were admitted to Congress, as those of the other 
States were. It was, however, thought necessary to extend to them, 
by special acts, the laws of the United States passed previously. 
Thereafter no new States could be admitted, unless under the clause 
of the constitution providing for their admission. The practice has 
generally been that the people of a territory, desiring to become a 
State, formed a constitution, and submitted the same to Congress ; 
and only when Congress approved of that constitution was the State 
admitted. The mode of admission is not, however, regulated by 
the constitution, and is therefore a matter of law only, and of course 
is subject to the pleasure of Congress. There has been much diver- 
sity in the method of admission. We have treated of the thirteen 
States in a geographical order. The remaining twenty-four States 
will be presented in the order in which they were received into the 
Union. 

VERMONT. 

Vermont was admitted in 1791. It is bounded north by Lower 

Canada, east by New Hampshire, south by Massachusetts, and west 
by New York and Lake Champlain. It contains 10,212 square 
miles, or 6,535,680 acres. 

By its constitution, the governor, lieutenant-governor, and treas- 
urer, and most of the other officers of the State, are elected by 



A CITIZEN OF THE UNITED STATES. 127 

the people biennially; no one being eligible to the office of governor 
or lieutenant-governor unless he has resided in the State four years 
next preceding the day of his election. The General Assembly 
(Senate and House of Representatives) meets biennially, and elects 
the judges of the Supreme Court biennially. Each judge of the 
Supreme Court has full power as chancellor. A very peculiar pro- 
vision, wherein this State differed from all the others, was in force 
until recently. It related to its Council of Censors. This council 
consisted of thirteen persons, chosen by the people every seven 
years, and holding office for one year. Their functions seem to 
have been imitated from those of the old Roman censors. They 
had less power to do anything; but it was their duty to inquire into 
the doings of all the officers of the government, executive and 
legislative, and ascertain whether the constitution had been duly 
regarded. They inquired also whether the public taxes had been 
justly imposed, and duly collected in all parts of the State, and 
whether the funds of the State had been properly disposed of. For 
these purposes they could pass public censures, could order im- 
peachments, and could advise the legislature to repeal laws which 
the censors thought unconstitutional. They could call a convention 
to amend the constitution, to meet within two years after their 
sitting. It may be believed that this singular institution was found 
useless, for it has been recently abolished. 

Vermont was discovered and in part explored by French officers 
in 1609. But the first white settlement in the State was made in 
1724, in what is now Brattleborough, a site then regarded as within 
the limits of Massachusetts. Immigration did not begin to any 
extent until about a dozen years before the revolutionary war. The 
Governor of New Hampshire claimed the territory under the charter 
of that colony, the country west of the Connecticut being known at 
that time only by the name of the New Hampshire grants. In 1763 
the Governor of New York claimed the territory under the grants 
from Charles II. to the Duke of York. The Governor of New 
Hampshire resisted his claim. The King of England was appealed 
to, and granted to New York jurisdiction to the Connecticut River. 
The Governor of New Hampshire yielded to this. The government 
of New York then endeavored to dispossess the settlers from their 
lands. Armed resistance under Ethan Allen and other such men 
made the efforts of New York ineffectual. If an officer undertook, 
under process of law, to eject a settler, he was stripped, tied to a 
tree, and severely whipped with beechen rods. This was called 
setting a "beech seal" upon him; and the effect was, that no officers 
could be induced to serve writs. The strife continued in various 
ways for some ten years. The Governor of New York issued a 



128 THE POLITICAL RIGHTS OF 

proclamation commanding eight of the leaders of this resistance to 
surrender themselves, and offered a large reward for the capture of 
each of them. Whereupon these leaders replied by offering a reward 
for the capture of the Attorney-General of New York. Then the 
revolutionary war broke out, and gave the people of both colonies 
something else to attend to. In 1776 the settlers in Vermont peti- 
tioned the provincial congress for admission into the confederacy ; 
but their petition was opposed by New York, and they withdrew it. 
The next year Vermont declared her independence, and again asked 
to be admitted into the confederacy. Congress delayed until 1781, 
when it offered to admit Vermont, but with a large diminution of 
her boundaries. This the people refused to accept, and remained 
outside the Union. In 1790 New York offered to relinquish all her 
claims to the territory of, or jurisdiction over, the State, for thirty 
thousand dollars. This offer Vermont accepted. During the war 
Vermont was not in the confederacy, and had no representatives in 
their congress ; but her sons fought bravely for independence, and 
were engaged in some of the most important battles and expedi- 
tions of the war. In the war of 1812 they were active in the battle 
of Plattsburgh, and in the naval conflict on Lake Champlain. In 
1837, when a rebellion broke out in Canada, the inhabitants of the 
northern counties of Vermont sympathized therewith ; and a large 
number of them passed over the line into Canada, but dispersed and 
retreated before a British military force, the United States authori- 
ties commanding them to return and give up their arms. 

Vermont has some successful manufactories, and carries on some 
commerce through Burlington on Lake Champlain, but is essentially 
an agricultural State. Her mountains, from which she derives her 
name, yield large quantities of excellent slate and marble. 

KENTUCKY. 

This State was admitted into the Union in 1792. It is bounded 

north by Ohio, east by West Virginia and Virginia, south by Ten- 
nessee, west by Missouri and Illinois, and north-west by Indiana. 
It contains 37,680 square miles, or 24,115,200 acres. 

By the constitution the governor and lieutenant-governor are 
chosen by the people, by a plurality vote, for the term of four years. 
The governor cannot be chosen for the term succeeding his election. 
If the office of governor be vacant in the first half of the term, it is 
filled by a new election; if during the last half, the lieutenant- 
governor becomes acting governor ; and if he dies or is disabled, the 
speaker of the senate. The secretary of state is appointed by the 
governor, with the consent of the senate. The treasurer is elected 



A CITIZEN OF THE UNITED STATES. 129 

by the people every two years. Members of the senate are chosen 
for four years ; they are thirty-eight in number. The house of rep- 
resentatives consists of one hundred members, and hold office two 
years. Judges of the Court of Appeals are elected by districts for* 
eight years, one being chosen every second year. The judge who 
has the shortest term to serve is chief justice. The Circuit Court 
judges are elected for six years, and justices of the peace for four 
years. 

The exploration of the territory now constituting Kentucky 
began about 1770 ; and in 1777 it was a county of Virginia, and the 
first court was held there. Although it began at a comparatively 
late period, the settlement increased very rapidly, the immigration 
being large and constant. The name " Kentucky " is said to mean, 
in the Indian language, " the dark and bloody ground ;" and it was so 
called because savage warfare had existed there for many ages. Nor 
did the savages permit the occupation of their land without resist- 
ance. Conflicts between them and the immigrants were frequent 
and severe. It was believed that they could protect themselves 
better if separated from Virginia ; and a movement in that direction 
began as early as in 1775. Successive conventions were held ; and 
at length, in 1786, the legislature of Virginia passed an act of separa- 
tion. It was not, however, accepted by the people of Kentucky, 
nor was the separation then completed. The difficulty in the way 
was a strange one, and peculiar to the people of this State ; obstruct- 
ing no other on their way into the Union. This difficulty was, the 
inclination of a large part of the people to have an independent 
nationality. This desire was inflamed by false reports, and, it is 
said, by clandestine efforts on the part of Spain, who at that time 
held possession of the mouth of the Mississippi. At length, how- 
ever, but not until a seventh convention on the subject was held, 
the desire to be admitted into the Union prevailed. But it was not 
till after two more conventions that Kentucky became, in 1790, a 
separate territory, and was admitted into the Union in 1792. 
Troubles still continued ; and from time to time the idea of inde- 
pendence was again agitated. The navigation of the Mississippi 
was of vast importance to Kentucky ; and not until this point was 
secured by the purchase of Louisiana by the United States in 1803 
were these troubles entirely composed. Since that time the pros- 
perity of the State has constantly advanced, and the agricultural and 
other industries within its limits are well developed. The State is, 
indeed, eminently an agricultural and grazing country. It exports 
large amounts of tobacco, and raises stock io great variety and quan- 
tity. In many parts of the State the pastures support the stock 
nearly the year round. Coal is found in great abundance, and iron 

9 



130 THE POLITICAL RIGHTS OF 

and lead are also found in many parts, and there are many salt- 
wells. It has no foreign commerce, but carries on an active trade 
with New Orleans and various ports on the Ohio and Mississippi. 

TENNESSEE. 

This State is bounded north by Kentucky and Virginia, south- 
east by North Carolina, south by Georgia, Alabama, and Mississippi, 
and west by Arkansas and Missouri. It contains 45,600 square 
miles, or 29,384,000 acres. 

The governor is elected by the people for two years, by a plural- 
ity vote. The secretary of state, treasurer, and comptroller are chosen 
by the general assembly; the attorney-general is appointed by the 
judges of the Supreme Court. The senators and representatives are 
elected for two years. Their number depends on population ; the 
representatives are not to exceed seventy-five, until the population of 
the State shall be one million and a half, and shall never be more than 
ninety-nine; the senators shall not exceed one-third the number of 
representatives. The sessions of the legislature are biennial. The 
judges are elected by the people, and hold office for eight years. 

It is believed that the spot where Memphis now stands was visited 
in 1550 by De Soto, the Spanish explorer, who discovered the Mis- 
sissippi. But there was no settlement of the territory by white 
persons for more than two centuries. A settlement was attempted 
by a party of North Carolinians in 1754 ; but they were drivei 
back by the Indians. Two years afterwards the first permanent 
settlement was made ; and this was the first settlement by persons of 
English descent south of Pennsylvania and west of the Alleghanies. 
The conflicts with the Indians were constant and bloody. At length 
the savages were sufficiently subdued to remain quiet. During the 
war of the Revolution, and afterwards, until 1784, this territory 
formed a part of North Carolina. In 1785 the State of Franklin 
was organized, the people having become dissatisfied with the gov- 
ernment of North Carolina. But the new State was again united 
with North Carolina in 1788. The next year that State ceded the 
territory to the general government, and in the following year it, 
with Kentucky, was organized with the territory of the United 
States south of Ohio. In 1794 Tennessee was made a distinct 
territory, and in 1796 was admitted into the Union. 

The soil and climate of Tennessee are excellently adapted to the 
raising of stock, and the productions of the cereals, and of tobacco, 
which is mainly produced in its middle region. The western part 
of the State is well adapted to cotton. Iron ore is found, of great 
excellence and of great abundance ; coal, copper, and nitre are also 



A CITIZEN OF THE UNITED STATES. 131 

found, in quality and quantity sufficient to repay the working. In 
the eastern part of the State there is abundant water-power for 
manufactures ; but it is not yet largely utilized. 

OHIO. 

Ohio is bounded north by Michigan and Lake Erie, east by Penn- 
sylvania, Virginia, and West Virginia, south by West Virginia 
and Kentucky, and west by Indiana. It contains 39,964 square 
miles, or 25,576,960 acres. 

The governor, lieutenant-governor, secretary of state, auditor, 
treasurer, and attorney-general, are chosen by the people. The audi- 
tor for four years, the others for two years. The judges are chosen 
by the people, those of the Supreme Court and Court of Common 
Pleas for five years. The senators and representatives are elected 
biennially, and hold office two years. 

The first explorers of this territory were Frenchmen, whose 
object was to trade with the Indians, but not to settle in the coun- 
try ; they established, however, trading posts. The English claimed 
the territory, under a grant from their king; and from these conflict- 
ing claims a war broke out, which we have spoken of in our account 
of Virginia. The French kept possession of the country until it 
was surrendered to England by the treaty with France in 1763. 
Ohio was formed from the North-west Territory, from which many 
other States were subsequently formed. It is necessary, therefore, to 
give some account of this territory. 

The North-west Territory. 

At the time when the United States first formed a confederation, 

great difficulties arose from the claims of different States to the vast 
territory in the west, which was then for the most part unexplored 
and uninhabited, except by Indians ; some of the States holding on 
to rights given them as colonists, and defining their territories by 
the terms of grants to the colonies ; some of them by these grants 
extended across the continent to the Pacific, while others went as 
far as the Mississippi. But there were others of the original States, 
with limited boundaries defining their territory, and terminating it 
much nearer the Atlantic coast. In other words, some of the States 
had, so far as those grants could give it, a claim to a vast extent of 
the western territory, while others of the States could claim no part 
of it. In 1778 the State of Maryland proposed and insisted that 
the boundaries of such of the States as claimed to reach the Missis- 
sippi or Pacific, should be defined and restrained within much nar- 



132 THE POLITICAL RIGHTS OF 

rower limits, so that the property in the vast western territories 
might be held by the confederation as the common property of all 
the States. Different States offered various propositions and reso- 
lutions. Those from Delaware, presented to Congress in 1779, 
express the views of those of the States which had no such wide 
boundaries so clearly that we copy them here. 

" Resolved, That this State thinks it necessary, for the peace and 
safety of the States to be included in the Union, that a moderate extent 
of limits should be assigned for such of those States as claim to the Mis- 
sissippi or South Sea; and that the United States, in Congress assembled, 
should, and ought to have, the power of fixing their western limits." 

"Resolved, That this State consider themselves justly entitled to a 
right, in common with the members of the Union, to that extensive tract 
of country which lies westward of the frontiers of the United States, the 
property of which was not vested in or granted to individuals at the com- 
mencement of the present war. That the same hath been or may be 
gained from the King of Great Britain, or the native Indians, by the blood 
and treasure of all, and ought therefore to be a common estate, to be 
granted out on terms beneficial to the United States." 

The State of Virginia was perhaps foremost in the assertion of 
such claims, and opened a land-office for the sale of her unappropri- 
ated lands. Whereupon Congress, in 1779, passed the following act : 

"Whereas the appropriation of vacant lands by the several States, 
during the continuance of the war, will, in the opinion of Congress, be 
attended with great mischiefs: therefore, 

"Resolved, That it be earnestly recommended to the State of Vir- 
ginia to reconsider their late act of assembly for opening their land-office ; 
and that it be recommended to the said State, and all other States similarly 
circumstanced, to forbear settling or issuing warrants for unappropriated 
lands, or granting the same, during the continuance of the present war." 

Difficulties still continued, and assumed a more threatening char- 
acter ; when the legislature of New York, in 1780, authorized its dele- 
gates to limit and restrict the western boundaries of that State, with 
such reservations of the jurisdiction or the right of soil as they 
should think proper. The territory to be so ceded or relinquished 
should be disposed of only by Congress, for the benefit of the 
United States. And in the same year Congress took into con- 
sideration this act, together with the instructions of the legislature 
of Maryland to its delegates, and the remonstrance of the legislat- 
ure of Virginia, and after a very forcible and eloquent preamble 
passed the following resolve : — 

" Resolved, That copies of the several papers referred to the com- 
mittee be transmitted, with a copy of the report, to the legislatures of the 



a CITIZEN OF THE UNITED STATES. 133 

several States, and that it be earnestly recommended to those States who 
have claims to the western country to pass such laws, and give their dele- 
gates in Congress such powers as may effectually remove the only obstacle 
to a final ratification of the articles of confederation." 

This appeal answered its purpose. The seven States that claimed 
rights in this territory successively ceded the same to the United 
States: New York in 1781, Virginia in 1784, Massachusetts in 
1785, Connecticut in 1800, South Carolina in 1787, North Carolina 
in 1790, Georgia in 1802. Some of the States reserved a right to 
the soil, especially Virginia, which reserved nearly four millions of 
acres for her State troops ; and Connecticut reserved about as many 
acres near Lake Erie. It was by the sale of this reservation that 
Connecticut acquired her school fund, which now amounts to over 
two millions of dollars. 

In 1787 Congress passed the celebrated and most important 
" Ordinance for the government of the territory of the United States 
north-west of the river Ohio." This ordinance is very long, and its 
provisions are minute and carefully adjusted. At its close, six 
articles are stated to be " articles " of compact between the origi- 
nal States and the people in the States in the said territory, and are 
for ever to remain unalterable, unless by common consent. By the 
first article, religious freedom is secured; by the second article, 
habeas corpus, trial by jury, and the validity of contracts are 
secured ; the third article provides that education shall be encour- 
aged, that good faith shall be observed towards the Indians, and 
that they shall be treated with justice and humanity ; the fourth 
article provides that the territory and the States formed therein 
shall remain part of the United States ; that the primary disposal of 
the soil shall belong to Congress exclusively; and that the navigable 
waters leading into the Mississippi and St. Lawrence should be 
for ever free and common highways for the citizens of the United 
States ; the fifth article provides for the formation of new States 
within the territory ; the sixth article declares that there shall be 
neither slavery nor involuntary servitude in the territory. For a 
few of the immediately succeeding years the territory was much 
harassed by the attacks of the Indians. 

The State of Ohio was the first which was carved out of this 
great territory, and was admitted as a State in 1803. It was fol- 
lowed by many more, as we shall presently see. The State was 
rapidly settled by immigrants, chiefly from New England ; and in its 
turn it has sent large numbers of immigrants to the States west 
of it. 

Coal-fields cover nearly one-third of the whole State. Iron of 
the finest quality is found in many places. Large quantities of salt 



134 THE POLITICAL RIGHTS OF 

are manufactured and exported. Its extensive shore line on Lake 
Erie, with excellent harbors, give it great facilities for commerce, 
both domestic and foreign, by the lakes and the St. Lawrence. It 
is covered by an extensive system of railroads. But to its agricult- 
ure mainly it owes its great prosperity ; nearly all the land of the 
State being of good quality, and a very large proportion of it, much 
more than half, being under cultivation. 

LOUISIANA. 

This State is bounded north by Arkansas, east by Mississippi 

and the Atlantic, south by the Gulf of Mexico, and west by Texas. 
It contains 41,255 square miles, or 26,403,200 acres. 

The governor, lieutenant-governor, secretary of state, auditor, 
treasurer, are chosen by the people, for four years each. The 
senators, numbering thirty-six, are elected for four years, one- 
half every two years ; the number of representatives shall never 
exceed one hundred and twenty, nor be less than ninety, and they 
are chosen every two years. The judges of the Supreme Court are 
appointed by the governor, with the consent of the senate, for the 
term of eight years. They must be citizens of the United States, 
and have practised law in the State for five years, of which three 
are next preceding their appointment. The district judges are 
chosen for the term of four years by the people. 

Although the Spaniards had navigated the Gulf of Mexico, the 
Mississippi River was not discovered until the close of the sixteenth 
century, when the French founded a colony there. In 1717 New 
Orleans was founded. In 1716, the famous Mississippi bubble, 
so called, was begun by John Law at Paris. The territory was 
granted to a company formed by him, under the name of the Mis- 
sissippi Company. When this bubble burst, as it soon did, to the 
ruin of many persons, the territory was resumed by the French 
government, who retained possession of it until 1762, when they 
ceded it to Spain. In 1800, Napoleon Buonaparte, at that time 
first consul, induced the government of Spain to cede the territory 
back to France ; but it was held by that country only long enough 
to enable Napoleon to sell it to the United States, who paid him 
for the territory fifteen millions of dollars. Napoleon knew that 
neither he nor Spain could hold the territory against the naval 
forces of England, with whom war was then impending. By selling 
it to the United States he placed it in safe hands, and acquired a large 
sum of money, which was then of great importance to him. Presi- 
dent Jefferson made the bargain, doubting very much whether he 
was not straining, if not overstepping, the limits of the constitution, 



A CITIZEN OF THE UNITED STATES. 135 

and always spoke of the transaction as one that was justified only by 
a strict necessity. 

By that purchase the United States acquired the whole of the 
vast territory between the Mississippi and the Pacific, from the 
Spanish territory on the south to the British territory on the north. 
From the Louisiana purchase, as it was called, Louisiana was the 
first State carved out, followed by many other States, as Ohio was 
the first formed from the North-west Territory. Louisiana was 
admitted as a State in 1812. 

Its capital, New Orleans, is said to be the greatest cotton market 
in the world. Fourteen States pour their produce into that city, by 
the Ohio, the Missouri, the Mississippi, and their tributaries ; and 
it has otherwise extensive commerce. As an agricultural State, Lou- 
isiana has immense resources. Its soil is almost everywhere adapted 
to cultivation. The bottom-lands especially are of inexhaustible fer- 
tility, and vast herds of cattle and sheep are pastured on the natural 
meadows of the Opelousas prairies. In one of the islands at the 
mouth of the Mississippi there is an enormous bed of rock-salt. 

INDIANA. 

This State is bounded north by Lake Michigan and the State of 
Michigan, east by Ohio, west by Illinois, and south by Kentucky. 
It contains 33,809 square miles, or 21,637,760 acres. 

The governor and lieutenant-governor hold office for four years ; 
the secretary of state, auditor, treasurer, attorney-general, and su- 
perintendent of public instruction, hold their office for two years ; 
all are chosen by the people, except the attorney-general, who is 
elected by the general assembly. The senate shall not exceed fifty, 
nor the house of representatives one hundred members. Senators 
are elected for the term of four years, and representatives for two 
years ; the sessions of the legislature taking place biennially. The 
judges of the Supreme and Circuit Courts are chosen by the people 
for six years, and of the Court of Common Pleas for four years. 

Indiana was originally a part of the North-west Territory. It 
was probably first settled about 1700, by French Canadians, who 
seemed to have adopted the habits of the Indians, and lived 
mainly by hunting. In 1763 the country was ceded to the English, 
and the settlers were confirmed in their possessions. In 1788 a dig 
astrous Indian war broke out, and continued for three years, when 
the Indians were for a time subdued. It was organized into a 
territory in 1800, from which in 1805 the Territory of Michigan was 
set off, and in 1809 the Territory of Illinois, leaving the Territory of 
Indiana what the State now is. During all this time the Indians 



136 THE POLITICAL RIGHTS OF 

had continued to be troublesome ; and in 1811 a war broke out 
under Tecumseh, but the Indians were beaten, and sued for peace. 
When the war broke out with England, in the next year, the In- 
dians again renewed their hostilities; but were again subdued, 
and a peace was made with them in 1815, and since that time they 
have not caused any serious trouble. The State was admitted into 
the Union in 1816. 

The wealth of this State consists in its live-stock and in its agri- 
cultural productions. Nearly all of its surface is capable of culti- 
vation, and most of it is very fertile. The census of 1860 showed 
about four times as many farmers in the State as of farm laborers, 
showing how very large a proportion of the owners of the land 
then cultivated it with their own labor. The railroads are very 
extensive, and are well supported. It has vast coal-fields, of excel- 
lent quality. It has many forges and furnaces for iron. It exports 
much lumber, flour, and some wine. 

MISSISSIPPI. 

The State of Mississippi is bounded north by Tennessee, east by 

Alabama, west by Louisiana and Arkansas, and south by the Gulf of 
Mexico and Louisiana. It contains 45,156 square miles, or 28,899,840 
acres. 

The governor must have been a citizen of the United States for 
twenty years, and a resident of the State for two years ; and with 
the lieutenant-governor is elected for four years. The secretary of 
state, treasurer, and auditor are elected by the people for four years. 
The number of representatives shall not be less than one hundred, 
nor more than one hundred and twenty. The number of senators 
shall never be less than one-fourth, nor more than one-third of the 
whole number of representatives, and shall hold office four years. 
Judges of the Supreme and Circuit Courts are appointed by the 
governor, and hold office, those of the Supreme Court nine years, 
and those of the Circuit Courts six years. Justices of the peace hold 
office two years. 

This is another of the States discovered and traversed by De Soto 
and his companions. This was in 1542. Forty years afterwards, 
La Salle, a French navigator, coming down from Canada, descended 
the Illinois River to the Mississippi, and took possession of the 
adjacent territory for the King of France, giving it the name of 
Louisiana. The French built forts and planted colonies in the ter- 
ritory. The colony did not prosper. Then the Western Company, 
which had held possession of it, surrendered its charter, and the 
King of France opened the trade of the territory to all his subjects. 



A CITIZEN OF THE UNITED STATES. 137 

For a while the colony seemed to prosper; but the Chickasaw Indians 
attacked it with great violence, and for a time with much success. 
After a while they were subdued or pacified for a time, and during 
this period the colony grew in population and in wealth. Again, 
however, the Indians became hostile, to its great detriment. Through 
all these fluctuations the colony, on the whole, advanced. The ter- 
ritory was a part of the Louisiana purchase already spoken of in the 
account of the State of Louisiana. It was formed into a territory 
by Congress in 1798. When Georgia, in 1802, ceded to the United 
States her lands south of Tennessee, they were attached to the Terri- 
tory of Mississippi, which then included what are now the States of 
Alabama and Mississippi. In 1817 a part of the territory was sep- 
arated, and organized as a territory under the name of Alabama; 
and later in the same year the rest of the territory was admitted to 
the Union, as the State of Mississippi. 

This State is one of the principal cotton-producing States. It is 
said, however, that much more of its land is now given to corn and 
other crops than formerly. Its direct foreign commerce is small, nor 
has it many manufacturing establishments. The soil is generally of 
great fertility, and a large part of the State as a cultivable country 
has no superior. It is said that the statistics of vitality show that 
the districts of this State which are sufficiently elevated to be dry 
are among the healthiest regions in the world. 

ILLINOIS. 

This State is bounded north by Wisconsin and Lake Michigan, 
east by Indiana, south-east by Kentucky, south and south-west by 
Missouri, and west by Missouri and Iowa. It contains 55,405 square 
miles, or 35,459,200 acres. 

The governor, lieutenant-governor, secretary of state, and auditor 
are elected by the people for four years ; the treasurer and superin- 
tendent of public schools for two years. The senate consists of 
twenty-five members, who are chosen for four years, half of whom 
are elected biennially. The house of representatives consists of 
seventy-five members, until the population of the State amounts to 
one million, when five members may be added, and five additional 
members for every five hundred thousand inhabitants thereafter, 
until the whole number of representatives amounts to one hundred, 
after which the number shall neither be increased nor diminished. 
The judges are elected by the people ; those of the Supreme Court 
for nine years, and those of the Circuit Courts for six years, and the 
county judges for four years. 

This territory was first settled by the French, after La Salle and 



138 THE POLITICAL RIGHTS OF 

his companions had discovered it. This was in 1680. Some twenty 
years afterwards the settlement was described by French writers as 
in a flourishing condition. Most of the early settlers adopted the 
mode of life of the Indians about them, and became almost as savage 
as they were. The colonies of France and England in North 
America, as they extended, came nearer together, and disputes arose 
almost inevitably about boundaries which there were so few means 
of defining with any accuracy. These disputes helped to produce 
the war between those two nations, which was ended, in fact, by 
the victory of Wolfe on the plains near Quebec; and in 1763 the 
dominion of the French ceased over every part of the territory east of 
the Mississippi. Twenty years afterwards, the peace of 1773 closed 
the American Revolution, and transferred this territory to the United 
States ; and it was included in the North-west Territory by the ord- 
nance creating that territory in 1787. In 1818 Illinois was admitted 
as a State into the Union. 

This State is, in its soil and situation, peculiarly favorable to 
agriculture, which has been pursued most successfully. Indeed, it 
surpasses all the other States in the production of the cereals. Its 
lead-mines are among the most valuable in the world. Its coal- 
fields extend over nearly four-fifths of the whole State. Salt is 
found in its southern counties; and gold, silver, and copper are 
obtained, but not in large quantities. Its largest city Chicago, 
on Lake Michigan, at the mouth of the Chicago River, has the only 
good harbor on the south-western side of the lake. An extensive 
system of railroads bring to it the productions not only of its own 
great State, but, through that State, of others lying further west. 
This, added to its lake commerce, has caused it to grow with an 
almost unexampled rapidity. It was destroyed in great part by the 
fire of 1872. Its rapid recovery has manifested both its energy 
and its resources. 

ALABAMA. 

This State is bounded on the north by Tennessee, on the east by 
Georgia and Florida, on the south by Florida and the Gulf of Mex.. 
ico, and on the west by Mississippi. It contains 50,722 square miles, 
or 32,462,080 acres. 

The governor, lieutenant-governor, secretary of state, and treas- 
urer, are chosen by the people, for two years ; the attorney-general 
is elected for four years. The senate must consist of not less than 
one-fourth, nor more than one-third, of the number of the represent- 
atives. Senators are elected from districts, arranged according to 
population, each district returning one senator. The house of rep- 



A CITIZEN OF THE UNITED STATES. 139 

resentatives, of which each county must have at least one member, 
must not exceed in the whole one hundred members, and they are 
apportioned according to population. The representatives are 
elected for two years, and senators for four years ; and the last must 
be twenty-seven years of age. The judges are elected by the peo- 
ple, each being elected for one of the circuits into which the State 
is divided for that purpose, and after his election must reside in that 
circuit. The judges of the several courts of this State hold their 
offices for the term of six years. 

The territory of this State was originally a part of Georgia, and 
in 1798 was included in the Territory of Mississippi. Florida reached 
at that time, and until 1812, to the French possessions in Louisiana. 
In that year, when the war with Great Britain broke out, so much of 
Florida as lay between the Perdido and Pearl Rivers was occupied 
by the troops of the United States, and was afterwards annexed 
to the Territory of Mississippi. A bloody war with the Creek 
Indians broke out in 1813, and continued for nearly two years, until 
the Creeks were effectually subdued in a series of battles, in which 
they lost large numbers. A treaty of peace was made with them, 
by which they surrendered three-quarters of their territory, which 
was rapidly settled. After the western portion was admitted as the 
State of Mississippi, in 1817, the eastern portion remained as the 
Territory of Alabama, until 1819, when it was admitted as a State. 

The low river-bottoms of the State, and some parts of the high- 
lands in the north, are hardly cultivable ; but much the greater part 
of the State is excellent and fertile land, and healthy. It has a few 
manufactures, which are now said to be increasing. Its commerce, 
through the city of Mobile, is, or certainly was, quite extensive. This 
city was originally founded by the French, and for many years was 
the capital of the colony of Louisiana. It is, however, to its very 
extensive and successful agriculture, and especially to its production 
of cotton, that this State owes its prosperity. 

MAINE. 

This State is bounded north and north-west by Canada, east by 

New Brunswick, south and south-east by the Atlantic, and west by 
New Hampshire. It contains 35,000 square miles, or 22,430,000 
acres. 

The governor is chosen by the people annually; there is no 
lieutenant-governor. A council of seven persons, and all other 
State officers, are chosen by the senate and house of representa- 
tives in joint convention. The house of representatives shall con- 
sist of not less than one hundred nor more than two hundred 



140 THE POLITICAL RIGHTS OF 

members, to be elected annually. The senate consists of not less 
than twenty, nor more than thirty-one members, elected at the same 
time and for the same term as the representatives. The judges are 
appointed by the governor, with the consent of the council, and hold 
office for a term of seven years from their respective appointments. 

The history of this State is identified with that of Massachu- 
setts for many years. The Plymouth Company of England, in 1607, 
obtained a grant which included this territory, and sent out to it a 
colony, which remained only one year. In 1613 a number of French 
persons landed at Mount Desert, for the purpose of forming a settle- 
ment there, from which missionary operations might be conducted. 
This, however, was soon dispersed by the magistrates of Virginia, 
who destroyed the settlement. 

After various unsuccessful attempts to plant colonies, Sir Ferdi- 
nando Gorges obtained from James I. a grant to the Plymouth 
Company of all the country between latitude 40 and 48 degrees, 
which grant included the land on which the Pilgrims landed in 
December of the same year. Gorges endeavored, but without suc- 
cess, to expel both the Plymouth and the Massachusetts colonists. 
About 1629 the Plymouth Company of England granted out their 
territory in parcels, as applicants required them ; and in a few years 
the whole coast had been disposed of, and much land on the west, 
lying between the Merrimack and Piscataqua Rivers. In 1635 the 
Plymouth Company divided the territory among its members, 
Gorges receiving the territory between the Piscataqua and the Ken- 
nebeck Rivers, of which, four years later, Charles I. gave him a char- 
ter, giving to the territory the title of the province of Maine, the 
origin of which name is unknown. At the death of Gorges, Maine 
descended to his heirs, and was held under different jurisdictions, in 
various portions. Massachusetts then put in a claim for the whole 
province, which was practically allowed. After the restoration of 
the Stuarts, Charles II. in 1664 sent royal commissioners, with 
orders to restore the property and authority of the heirs of Gorges. 
Massachusetts, of course, resisted, and troubles ensued, which Massa- 
chusetts ended in 1677 by buying the interests of the claimants for 
a large sum. It cannot be said that the province, as a whole, pros- 
pered. The Indians, aided by the Canada tribes, were continually 
disturbing the country ; many towns were plundered and burned, 
and many of the settlers slain, or made captives, or driven away to 
distant places. After the savages were finally subdued, about the 
middle of the sixteenth century, the province made steady progress 
in population and in wealth. It was less affected than Massachu- 
setts by the war of the Revolution, but her northern and eastern 
portions suffered much in the war of 1812. Maine was finally sepa- 



A CITIZEN OF THE UNITED STATES. 141 

rated from Massachusetts in 1820, and admitted as a State into the 
Union. 

A controversy between the governments of the United States and 
Great Britain in regard to the boundary between Maine and the 
British territories at length caused so much excitement and hostil- 
ity among the population near the disputed territory, that it threat- 
ened to produce war between the two countries. But it was finally 
settled in a satisfactory manner in 1842, by the treaty of Wash- 
ington. 

Agriculture is prosecuted in this State with sufficient success in 
many parts, but its climate is too severe to permit the State to 
compete in its agriculture with those more favored in this respect. 
But its immense forests, and numerous and excellent harbors, have 
given to it peculiar facilities for the business of lumbering and for 
ship-building, both of which have been carried on very extensively. 
The exhaustion of the most accessible forests, and the penetration 
of the railroads into those of the Western States, have diminished 
its lumber business; and its ship-building has suffered from the 
general depression of that business. But its manufacture of lumber 
is still very considerable, and its ship-building is reviving. It has 
many manufacturing establishments, some of which are very large ; 
and they appear to be increasing rapidly. The commerce of the 
State is large and growing. 

MISSOURI. 

This State is bounded north by Iowa, east by Illinois, Kentucky, 
and Tennessee, south by Arkansas, and west by Kansas and Ne- 
braska and the Indian Territory. It contains 65,350 square miles, or 
41,824,000 acres. 

The governor, lieutenant-governor, secretary of state, treasurer, 
auditor, attorney-general, and registrar of lands, are chosen by the 
people, and hold office for two years ; the superintendent of public 
schools, also chosen by the people, holds office four years. The sena- 
tors, in number thirty-four, are chosen from senatorial districts for 
four years, one-half biennially. The number of representatives is 
ascertained by dividing the whole number of permanent inhabitants 
of the State by two hundred. They are chosen for two years. The 
judges are elected by the people : the judges of the Supreme 
Court by the State, for six years ; and the judges of the Circuit 
Court by their districts, for the same period. 

This State was included in the Louisiana purchase, and for a long 
time was commonly called Upper Louisiana. The favorable condi- 
tions offered to immigrants by the Spanish government had attracted 



142 THE POLITICAL RIGHTS OF 

a considerable number of colonists. When the territory was pur- 
chased from France in 1803, the lower part of it was organized as 
the Territory of Orleans, and in 1805 the upper part was organ- 
ized as the Territory of Louisiana, St. Louis being its capital. In 
1812, when the State of Louisiana was admitted into the Union, 
the name of the territory was changed to Missouri. Purchases were 
made from the Indians, which extended its western limits. In 1817 
its population had grown beyond the number then deemed neces- 
sary for a State, and the people of the territory applied to Con- 
gress for admission. Thereupon arose a struggle, which continued 
for three years, and was at one time very violent, upon the question 
whether slavery should be admitted into the new State. This 
was settled in 1820, by what is popularly known as the Missouri 
compromise, the purpose of which was that Missouri should 
be admitted, with the right of holding slaves ; but that no slave 
States should be thereafter formed from territories lying north 
of latitude 36° 30'. The State was admitted into the Union in 
1821. 

In agriculture, in manufactures, in mining, and in commerce, this 
State is almost equally distinguished. Its soil has great variety and 
excellence. In its southern portion cotton is produced, though not 
so advantageously as farther south. All the productions of the 
temperate zone are raised in abundance, and fruits reach great size 
and excellence. The culture of the grape, and the manufacture of 
wine, already great, are growing rapidly. The manufactures are prin- 
cipally flour and iron, both very large ; her iron deposits being un- 
surpassed in the world. Silver, copper, manganese, iron, lead, 
cobalt, nickel, are all found, and a large part of the State is under- 
laid with excellent and accessible coal. The capital, St. Louis, 
founded in 1775 as a depot for the fur trade, is now one of the 
largest cities of the West, and has a very extensive commerce, both 
water-borne and by railroad, and this is rapidly increasing. 

ARKANSAS. 

This State is bounded north by Missouri, south by Louisiana and 
Texas, east by Missouri, Mississippi, and Tennessee, and west by 
Texas and the Indian Territory. It contains 52,198 square miles, 
or 33,406,720 acres. 

The governor, lieutenant-governor, secretary of state, auditor, 
treasurer, attorney-general, and superintendent of public schools, 
are chosen by the people for four years. The senate consists of 
twenty-six members, chosen for the same period. The house of 
representatives has eighty-two members, chosen for two years. The 



A CITIZEN OF THE UNITED STATES. 143 

judges of the Supreme Court hold office eight years, and those of 
the inferior courts six years. They are appointed by the governor, 
with the consent of the senate. The present constitution of this 
State was adopted in 1868, and contained a provision that the par- 
amount allegiance of every citizen is due to the federal government, 
in the exercise of all its constitutional powers, as these may be defined 
by the Supreme Court of the United States ; and that neither the 
people of this State, nor of any other of the United States, has the 
power to dissolve their connection therewith, or do any act tending 
to impair, subvert, or resist the supreme authority of the United 
States. This State was a portion of the Territory of Louisiana, 
purchased under the administration of Thomas Jefferson. It re- 
mained a part of this territory until 1812, when Louisiana was 
admitted as a State, and the remainder was organized as the Mis- 
souri Territory. This continued until 1821, when Missouri was 
admitted as a State, and Arkansas was made a territory under that 
name. This territory was admitted as a State in 1836. 

This State has some manufactures, but not many, and is essen- 
tially agricultural. Its soil is very various ; but most of it is fertile, 
and the river bottoms exceedingly so. There are large tracts of land 
which might be brought under culture by drainage, and would then 
be of inexhaustible fertility. The climate is too cold for the culti- 
vation of sugar ; but both soil and climate are well adapted for cot- 
ton, of which the production is very large. The State is rich in 
minerals ; iron, coal, zinc, and lead abound in many parts of it, .and 
it is said to contain more of manganese and gypsum, the latter 
especially, than any other State. 

MICHIGAN. 

This State is bounded north by Lake Superior, east by lake 
Huron, Lake Erie, and Lake St. Clair, south by Ohio and Indiana, 
and west by Lake Michigan. It contains 56,243 square miles, or 
35,995,520 acres. 

By its constitution the governor, lieutenant-governor, secretary 
of state, treasurer, auditor, attorney-general, commissioner of the 
land-office, and superintendent of public instruction, are chosen for 
two years. The senate consists of thirty-two members, and the 
house of representatives of not less than sixty-four, nor more than 
one hundred members ; both are chosen for two years. Judges of 
the Supreme Court hold office eight years, and those of the Circuit 
Courts for six years. The judges are chosen by the people. 

French missionaries and far traders were the first discoverers 
and settlers of this territory. But it was not largely colonized. It 



144 THE POLITICAL RIGHTS OF 

was transferred to Great Britain with other French possessions in 
1763, and afterwards it underwent its full share of those Indian 
troubles which involved almost all the English settlements in this 
country. It was a part of the north-western territory, for which was 
made the ordinance of 1787, before referred to. It was organized as 
territory in 1805; and in 1818 the public lands were surveyed and 
offered for sale. A large immigration began, and has continued to 
the present time. In 1835 a controversy arose with Ohio concern- 
ing land claimed by the territory and also by the State ; but in 1836 
Congress passed an act of conditional admission of Michigan into 
the Union, requiring her to renounce her claim to the disputed terri- 
tory, the upper peninsula being given to her by way of compensa- 
tion. In accordance therewith, in 1837 the territory was admitted 
as a State. This State has large agricultural, manufacturing, min- 
ing, and commercial industries. Of these the agricultural are most 
important, for this is one of the great grain States of the West. Its 
manufactures are chiefly flouring-mills, breweries, distilleries, and oil- 
mills. Its fisheries are very large. Of its mining products, copper 
is much the most valuable ; and in the northern peninsula there is 
found, in the remains of ancient mines and tools, evidence that the 
country was once occupied by a race of which the Indians found 
there had no tradition whatever. 

The commerce of Michigan is extensive, and is mainly with 
Canada, although there has been some effort to establish a direct 
foreign commerce, by ships sailing from Detroit. The home trade 
by the many railroads in the State is very large, and rapidly 
growing. 

FLORIDA. 

This State, situated at the southern extremity of the Union, is 

bounded north by Alabama and Georgia, south by the Gulf of 
Mexico, west by the same and Alabama, and east by the Atlantic 
Ocean. It contains 59,268 square miles, or 37,931,520 acres. 

The governor and lieutenant-governor are chosen by the people 
for four years. The secretary of state, treasurer, comptroller, 
attorney-general, superintendent of public instruction, adjutant-gen- 
eral, and commissioners of immigration, are appointed by the gover- 
nor, with the consent of the senate, for four years. The senators 
number twenty-four, and are chosen for a term of four years, one- 
half thereof being elected biennially. The members of the as- 
sembly, fifty-three in number, are elected for two years. The 
Seminole Indians send one member to each branch of the legislat- 
ure ; he must be a member of the tribe, and be elected by Indians 



A CITIZEN OF THE UNITED STATES. 145 

qualified to vote. The judges are appointed by the governor, with 
the consent of the council. Those of the Supreme Court hold their 
office for life, or during good behavior. Judges of the Circuit Courts 
hold their office for eight years. 

This State has a peculiar history of its own. It was first visited 
by Ponce de Leon, the Spaniard. He had been to America repeat- 
edly, and was at one time governor of Hispaniola. In 1512 he was 
an old man, and had heard that somewhere in the islands of the 
newly discovered America there was a fountain which could restore 
youth and strength and beauty. Age had not subdued his spirit of 
adventure ; and he sailed at the head of an expedition, fitted out at 
his own expense, in search of this fountain. He visited island after 
island, but sought for it in vain. In the course of his voyage he 
discovered Florida, on Easter Day, which is called in the Spanish lan- 
guage Pascua Florida [flowery passover]. From this circumstance, 
aided perhaps by the beautiful vegetation around him, he gave to 
the country the name of Florida. The next year, arriving in Spain 
and reporting his discovery, he was appointed governor of Florida, 
and required to colonize the country. Not, however, until 1521 
did he go with two ships to take possession of his province. The 
natives resisted him with the most resolute hostility, and drove the 
Spaniards to their ships; and in the battle Ponce de Leon was 
mortally wounded, receiving his death-blow in the country where 
he had hoped to find the fountain of immortality. The Indians 
continued to resist the further efforts of the Spaniards to Colonize 
the country ; but its settlement made considerable progress. 

In the middle of the sixteenth century many French Protestants, 
persecuted at home, fled to Florida, only to find themselves still 
worse treated. The Spaniards attacked them, and hung many 
on trees, with an inscription to the effect that they were put to 
death not as Frenchmen, but as heretics. A French party attacked 
and took the Spanish fort, and hung the Spanish soldiers on the 
same trees, with an inscription that they were put to death not as 
Spaniards, but as cut-throats and murderers. The Spaniards, how- 
ever, persisted in their efforts to gain possession of the country. 
The English claimed it, and captured the Spanish fort of St. Augus- 
tine in 1586. But little is known of what happened there for the next 
century. In 1696 the French settled in Pensacola. In 1702 Eng- 
lish colonists from Carolina and Georgia attacked the Spanish 
settlers. In 1763 Great Britain relinquished to Spain, Cuba, which 
it had recently taken, and received Florida in exchange. In 1783 
Florida was ceded by England to Spain, and in 1819 Spain ceded the 
whole province, which had been divided into two by the British, to 
the United States, and possession was taken in 1821. The Territory 

10 



146 THE POLITICAL RIGHTS OF 

of Florida was organized in 1823. There was then a considerable 
immigration into the country ; but in 1835 the Seminole war broke 
out, and it raged with great violence for some years, until in 1842 a 
treaty was made, by which most of the Indians consented to their 
removal west of the Mississippi. The State was admitted into the 
Union in 1845, and in 1858 all the remaining Indians were removed 
from the State. 

There i-s a considerable immigration into this State, both from 
the Northern States and from Europe. There are some manu- 
factures, and a valuable coasting trade; but the State is essen- 
tially agricultural. Cotton, sugar, rice, and corn are largely raised, 
and, with vegetables and fruits for the northern markets, bring 
large returns into the State. The warm climate and favorable soil 
permit kinds of cultivation scarcely known in any other part of the 
United States. Not only do oranges, lemons, and citrons grow well 
everywhere, but in the southern regions pineapples, bananas, and 
dates are raised easily, and ripen perfectly. A third part of the 
acreage consists of public lands not yet sold, and remaining to be 
disposed of to immigrants. 

TEXAS. 

This State is bounded north by New Mexico, Arkansas, and the 

[ndian Territory, east by Louisiana and Arkansas, south-west and 
west by Mexico, and south and south-east by the Gulf of Mexico. 
It is the largest State in the Union, and contains 274,356 square 
miles, or 175, 58*7, 840 acres. 

The governor, attorney-general, treasurer, secretary of state, 
comptroller, superintendent of public instruction, and commissioners 
of the land office and claims, are elected by the people for four years ; 
but the governor cannot hold that office more than four years in 
any period of six years. Senators must have been resident citizens 
within the State for three years, and in their district for one year, 
and be twenty-five years old. They are thirty in number, and are 
elected for four years. The representatives must have been resident 
citizens within the State, and one year within their district, and 
twenty-one years old. They are elected for two years, and shall be 
in number ninety members, and no more. Clergymen, salaried offi- 
cers under the United States government, and collectors of taxes 
who have not obtained a discharge for their collections, cannot be 
chosen to the legislature, or to State offices. The legislature cannot 
grant divorces nor permit lotteries, No individual may issue his 
paper as money ; and no corporate body can be created, renewed, or 
extended, with the right to carry on banking, or to discount paper. 



A CITIZEN OF THE UNITED STATES. 147 

The judges of the Supreme and District Courts are appointed by the 
governor, with the advice and consent of the senate ; the former for 
nine years, and the latter for eight years. 

The Territory of Texas was first visited by the French, who 
endeavored to settle there ; but they were driven off by the Span- 
iards, and a second attempt of the French was equally ineffectual. 
Texas attained no prosperity under its Spanish rulers. In fact, 
while it remained under the Spanish government, and afterwards 
a part of Mexico, its history is one of perpetual conflict. Still, 
the population grew considerably, mainly by immigration from the 
United States. In 1835 the people of the territory declared their 
independence, and succeeded in driving out the Mexicans for a time. 
But they returned under Santa Anna, and war was renewed and 
raged with much violence, and with alternate success. At length 
the Mexican forces were defeated, and Santa Anna taken prisoner. 
In 1836 the independent republic of Texas was established. In 
1837 it was acknowledged by the government of the United States, 
and in 1840 by England, France, and Belgium. The Mexican govern- 
ment did not cease its efforts to recover Texas, and sent, not so 
much armies as marauding expeditions into the republic. In 1843 
President Tyler made to the President of Texas propositions looking 
to the annexation of the republic to the United States. They were 
favorably received, and a treaty made in 1844, which was rejected 
by the senate. In the next year, however, joint resolutions for the 
annexation of Texas passed the house of representatives and the 
senate, by small majorities, and were approved by President Tyler 
the same day. After the admission of the State, Congress voted to 
pay to her ten millions of dollars in compensation for her relinquish- 
ment of a part of her territory, and of all her claims against the 
United States. By the resolutions of annexation, it was provided 
that four new States might hereafter be formed out of the territory 
thereof. But no such States have as yet been formed, and Texas 
remains quite unequalled in point of magnitude. 

This State has great facilities for internal and foreign commerce. 
Railroads are numerous, and all inducements are held out to immi- 
grants, by the healthiness of the State, the cheapness of the land, 
and its extreme fertility. It has already a considerable commerce ; 
and the production of cotton, corn, and wheat is large: and though 
the State at present is but thinly peopled, the promise it holds out 
of ultimate prosperity is very great. As a stock-raising State, it 
is now one of the first in the Union. 



148 THE POLITICAL RIGHTS OF 



IOWA. 

This State is bounded north by Minnesota, south by Missouri, 

east by Wisconsin and Illinois, and west by Nebraska and Dakota. 
It contains 55,045 square miles, or 35,228,800 acres. 

The governor, lieutenant-governor, and superintendent of public 
instruction are chosen by the people for two years, the election 
taking place every odd year. The secretary of state, auditor, treas- 
urer, and registrar of the land-office, are also chosen for two years, 
and are elected in every even year. The senate shall not consist of 
more than fifty members, and are chosen for four years, one-half 
being chosen every two years. The house of representatives shall 
not consist of more than one hundred members, who are chosen for 
two years ; and the sessions of the legislature are biennial. The 
number of senators cannot be less than one-third nor more than 
one-half that of the representatives. The judges are elected by the 
people ; those of the Supreme Court for six years, and those of the 
Circuit Court for four years. The constitution provides that State 
debts shall not be contracted except to repel invasion or to suppress 
insurrection : but money may be borrowed to supply defects in the 
revenue; not, however, more than $250,000 at any one time. Sus- 
pension of specie payment shall never be permitted. The legislature 
cannot grant divorces nor permit lotteries ; and no lease of agricul- 
tural lands shall be for more than twenty years. 

Iowa was a part of the Louisiana purchase already described. 
The first settlement within its limits was made at the close of the 
last century by Canadian Frenchmen. In 1838 Iowa was organized 
as a separate territory, and in 1846 was admitted into the Union as 
a State. 

The climate and soil of Iowa are, on the whole, favorable to 
agricultural operations, although its winters are made severe by 
the northern winds which sweep over its level prairies. Its coal- 
fields are very large and productive, and of great value. It has also 
large deposits of lead, and iron ore of the best quality is found in 
many places. This State is classed among the most healthy countries 
of the world, which is owing in great part to its excellent natural 
drainage. 

CALIFORNIA. 

This State is bounded north by Oregon, south by Mexico, east by 
Utah and New Mexico, and west by the Pacific Ocean. It contains 
188,986 square miles, or 120,947.840 acres. 



A CITIZEN OF THE UNITED STATES. 149 

The governor, lieutenant-governor, secretary of state, comptroller, 

treasurer, attorney-general, superintendent of public instruction, and 
surveyor-general, are chosen by the people for four years. The sen- 
ators, who are forty in number, are chosen for four years, one-half 
being chosen every second year. After the State numbers one 
hundred thousand inhabitants, the number of representatives shall 
never be less than thirty, nor more than eighty, and they are elected 
for two years. The judges of the Supreme Court are elected by the 
people for ten years, and the district judges for six years, and the 
County Court judges for four years. The supreme judges are chosen 
by the people of the whole State; the district judges and the county 
judges by the people of their respective districts and counties. By 
the constitution, no public debt can be created exceeding at any 
time the sum of three hundred thousand dollars. The legislature 
cannot grant divorces nor permit lotteries, The circulation of paper 
money of any kind is prohibited. 

The history of this State is most remarkable. It was discovered 
in 1534 by a Spanish explorer, and settlements were made in 1683 
by Jesuit missionaries. This was in Old California, so called, or 
Lower California, as now called. The first mission in Upper Cali- 
fornia was founded almost a century later ; and the government of 
the country, temporal as well as spiritual, was given to monks of the 
order of St. Francis, who gave their name to the bay of San Fran- 
cisco, discovered in 1770, and a few years after established a mission 
there. The territory was then considered a part of Mexico ; and when 
the independence of Mexico was established in 1822, the monks 
of St. Francis were deprived of their power and their possessions. 
In 1846 war was declared between Mexico and the United States; 
but the immigration from the latter into California had already 
been great, and the American settlers declared the independence of 
the country. Soon afterwards United States officers arrived there 
by sea, took possession of the country as a territory of the United 
States, and after some conflicts succeeded in establishing their power. 
In the treaty of peace between Mexico and the United States in 
1847, California, with some other territory, was ceded to the United 
States for fifteen millions of dollars. Early in 1848 gold was dis- 
covered ; and it is most remarkable, considering the abundance of 
the metal, the numerous settlements in the State, the large number 
of inhabitants, and the length of time which had elapsed since it 
was first peopled, that this discovery had been delayed so long. 

Similar ignorance or mistake existed in regard to what are now 
known to be the remarkable agricultural facilities and resources of 
the State. Alike by its mineral treasures and by the results of its 
agriculture, this State is already rich and prosperous, and promises 



150 THE POLITICAL RIGHTS OF 



to stand high among the richest countries of the world. Its gold 
region extends over an estimated area of 15,000 square miles, or 
about a tenth of its whole surface. It is useless to attempt enumer- 
ating its agricultural productions. It may rather be said that every 
thing of value which is grown elsewhere is raised there, excepting 
only the spices and some other products of the tropics. Already its 
wheat is largely exported, and its production of wine is very great, 
and rapidly increasing. Its capital, San Francisco, is situated on a 
bay which affords not only one of the best harbors in the world, 
but the only good harbor on that coast till you reach the British 
dominions. Its commerce is very great, not only with the other 
United States and with Europe, but with Japan, China, the East 
Indies, and Australia. It is subject to earthquakes, none of which as 
yet have done much damage. It is possible they may have checked 
its growth somewhat, and may do so in time to come ; but they 
must be far more destructive than they have ever been to prevent 
that city from becoming one of the greatest commercial ports in the 
world. 

WISCONSIN. 

Wisconsin is bounded north by the British possessions, south by 
Illinois, east by Michigan, and west by Iowa and Minnesota. It 
contains 53,924 square miles, or 34,511,360 acres. 

The governor, lieutenant-governor, secretary of state, treasurer, 
and attorney-general, are chosen by the people for two years. The 
number of members of the house of representatives shall never be 
less than fifty-four, nor more than one hundred. The senate shall 
not be more than one-third, nor less than one-fourth of the number 
of the representatives. The representatives are elected annually, 
and the senators hold office two years. The judges are elected by 
the people, for a term of six years. 

The territory of which this State is composed was first settled at 
Green Bay, two hundred years ago, by the French ; and the country 
remained in the possession of France until surrendered to Great 
Britain in 1763. In 1796 the Americans obtained possession of it, 
and extended the Ordinance for the government of the North-west 
Territory over the whole region. Although so long known, and in 
some places settled, the population of the State may be said to have 
begun when, in 1827, discoveries of large deposits of lead within it 
attracted the attention of immigrants. 

In 1836 it was organized as a territory, and admitted into the 
Union in 1848. Very few of the States have so rapidly increased 
in population as this. In the ten years following 1840 it was multi- 



A CITIZEN OF THE UNITED STATES. 151 

plied nearly tenfold, and in the following ten years much more than 
doubled. For some reason, the immigrants from Norway and Ger- 
many, especially the former, have gone to this State, not exclusively 
certainly, but in very large proportion. 

The State is a vast rolling prairie, with no mountains, and few 
hills of any magnitude. It is eminently agricultural, the surplus 
wheat exported bringing into the State heavy returns. Other staple 
crops are grown, especially hops, and yield abundantly. A very 
large lumbering business is carried on in the northern and western 
counties, where there are large pineries which cannot be exhausted 
for many years. The mineral deposits are various, extensive, and 
valuable. The region where lead is found covers more than two 
thousand miles in this State. There are large deposits of iron of 
great excellence, and some copper deposits. The manufacturing 
industry of the State is now large, and is growing rapidly. 



MINNESOTA. 

This State is bounded north by British America, east by Lake 
Superior and Wisconsin, west by Dakota, and south by Iowa. It 
contains 83,531 square miles, or 53,459,840 acres. 

The governor, lieutenant-governor, secretary of state, state treas- 
urer, and attorney-general, are chosen by the people, by a plurality 
vote, for two years, the auditor for three years. The number of 
members who shall compose the senate and house of representatives 
shall be prescribed by law ; but the representation in the senate shall 
never exceed one member for every five thousand inhabitants, and 
in the house of representatives one member for every two thousand 
inhabitants. The senators are chosen for two years, one-half each 
year. The representatives are elected annually. The judges of the 
Supreme and District Courts are elected by the people for seven 
years, and the other judges for two years. 

About one-third part of this State was included within the Loui- 
siana purchase, and about two-thirds of it within the North-west Ter- 
ritory. Two hundred years ago French explorers penetrated the ter- 
ritory. It was for a long time the seat of much missionary enterprise, 
and of a valuable trade with the Indians. The Territory of Minne- 
sota was organized in 1847, extending on its western border much 
beyond its present limits. In 1850 its population was only about five 
thousand ; the year after, the Sioux Indians ceded to the United 
States all their lands in the territory west of the Mississippi. The 
population then increased so rapidly that the State with its present 
limits was admitted in 1858. 



152 THE POLITICAL RIGHTS OF 

Although so far to the north, and with a climate of great sever- 
ity in winter, the uncommon healthiness of the territory, and the 
adaptation of the soil to the cultivation of all the productions of 
the temperate zone, attract a large immigration. The winters, while 
cold, are clear and dry, with but little snow. It has been supposed 
to be singularly favorable for persons who have consumptive ten- 
dencies ; and many invalids from the Eastern States have sought 
cure or relief from the salubrity of its climate ; and a number of 
them, finding that relief, have become permanent inhabitants. 

OREGON. 

This State is bounded north by Washington Territory, east by 
Idaho, south by Nevada and California, and west by the Pacific. 
It contains 95,274 square miles, or 60,975,360 acres. 

The governor, secretary of state, and treasurer, are chosen by a 
plurality of votes, for a period of four years. The senate consists, 
of sixteen members, who are elected for four years, and the house 
of representatives of thirty-four members, who are elected for two 
years. Their numbers may be enlarged, but may not be over thirty 
senators and sixty representatives. The legislature meets bien- 
nially. The judges are chosen in districts by the people for six 
years ; the attorney for each district is chosen for two years. 

The Columbia River, separating this State from Washington Ter- 
ritory, was discovered in 1792, by Robert Gray, a ship-master from 
Boston, who gave to it the name of his vessel. His report of the 
country induced Jefferson to send an exploring expedition, under 
Captains Lewis and Clark, across the continent, in 1804 and 1805. 
This expedition was the earliest of the many useful exploring expe- 
ditions which have been sent by the government into its western 
territories. Besides acquiring much valuable information, it was 
regarded as giving to this country a stronger title to the river and 
adjacent territory. In 1811 John Jacob Astor's fur company was 
established at the mouth of the Columbia River, at Astoria. The 
war with England breaking out next year, the establishment was 
sold to the British North-west Fur Company, to save it from cap- 
ture. In 1846 the treaty with Great Britain secured to the United 
States the whole of Oregon. It was organized as a territory in 
1848, including what is now the Territory of Washington. It was 
admitted to Congress . in 1857. Indians are numerous there, and 
from the first settlement have been troublesome. No great battle 
took place, although it could hardly be said that the settlers from 
any part of the territory were at any time quite safe ; but the 
savages may be said to be now effectually subdued. 



A CITIZEN OF THE UNITED STATES. 153 



Gold deposits have been discovered, and worked to some advan- 
tage, though as yet they are not very productive. The population 
of the State is steadily increasing. The region lying west of the 
Cascade Mountains is well adapted for stock-raising, and for agri- 
culture generally ; for although the climate is too moist and cool 
for Indian corn, other crops, as wheat, oats, and potatoes, grow well, 
and on the rich soil of the bottom-lands give great returns. The 
region east of the Cascade Mountains is, for the most part, too 
mountainous for tillage, but offers great facilities for stock-raising. 
Its extensive forests abound in valuable timber. Its fisheries of 
salmon are exceedingly productive, and large quantities are exported. 

KANSAS. 

Th 3 State is bonnded north by Nebraska, east by Missouri, 
south by the Indian Territory, and west by New Mexico and Utah. 
It contains 81,318 square miles, or 52,143,520 acres. 

The governor, lieutenant-governor, secretary of state, auditor, 
treasurer,. superintendent of public instruction, and attorney-general, 
are chosen by the people for a term of two years. The senators 
are twenty-five in number, and are elected for two years. The 
representatives, seventy-five in number, are elected for one year. 
The constitution was adopted in 1859, and was amended in 1867, by 
an amendment to disfranchise rebels. The judges are elected by 
the people ; those of the Supreme Court for six years, and those of 
the District Courts for four years. 

The State formed a part of the Louisiana purchase, heretofore 
frequently referred to, and in May, 1854, was organized as a sepa- 
rate territory. The peculiar feature in the history of this State was 
the violent conflict which took place on the question whether it 
should be a free State or a slave State. In our account of Missouri, 
what was termed the Missouri Compromise was referred to, by 
which it was enacted that in all the territories ceded by France to 
the United States under the name of Louisiana, which lie north of 
latitude 36° 30', excepting only " such part thereof as is included 
within the limits of the State contemplated by this act [Missouri], 
slavery and involuntary servitude, otherwise than in the punishment 
of crime, whereof the party shall have been duly convicted, shall 
be and is for ever hereby prohibited." But by the act of Congress 
in 1854, which organized the territories of Kansas and Nebraska, it 
was declared that the constitution and all the laws of the United 
States should be in force in those territories, except the Missouri 
Compromise Act of 1820, " which is hereby declared inoperative and 
void." Thereupon the antislavery party of New England, aided 



154 THE POLITICAL RIGHTS OF 

by charters granted by Massachusetts and Connecticut to emigrant 
aid companies, made great efforts to fill the territory with emigrants 
from the free States opposed to slavery. These efforts were met by 
counter efforts, mainly from the State of Missouri. At length the 
conflict grew into actual war. Fights occurred between the parties, 
in which many persons were killed on each side. At length, how- 
ever, the free State men prevailed, and the State was admitted as 
a free State. 

In the middle of this State a considerable extent of desert and 
uncultivable land reaches far to the southward. Elsewhere the soil 
is generally rich, and in many places exceedingly fertile. The 
climate is mild, and the winters short. Thus far there is reason to 
regard the State as remarkably healthy. The coal-fields of Mis- 
souri extend into it, and there are other valuable minerals. Prairies 
prevail over the State, but much timber is found in the bottom- 
lands near the rivers. The western part of the State is still oc- 
cupied by many Indian tribes, some of whom have reservations 
within it. The soil and climate hold out attractive invitations to 
immigrants. By the census of 1850 the whole territory was a wil- 
derness, with but a few small white settlements. But since that 
time the population has increased with great rapidity. Within the 
last few years many railroads have been constructed, a branch of 
the Pacific Railroad passing through the entire length of the State ; 
and railroads running north and south provide the means of inter- 
course and trade with the other States. 

WEST VIRGINIA. 

This State is bounded north by Pennsylvania, north-west by 

Ohio, west by Kentucky, east by Virginia and Pennsylvania, and 
south by Virginia. It contains 24,000 square miles, or 15,360,000 
acres. 

The governor, secretary of state, treasurer, and auditor are 
chosen by the people, and hold office for two years. The senate 
consists of eighteen members, elected for two years ; and the house 
of delegates of forty-seven, elected for one year. The judges are 
elected by the people; those of the Supreme Court hold office 
twelve years. They are three in number, one of whom goes out of 
office every fourth year. Judges of the Circuit Courts hold office six 
years. 

This State may be regarded as* one of the results of the recent 
civil war. It consists of the western counties of the old State of 
Virginia, and arose from a difference of sentiment from the people 
of the eastern half of Virginia in regard to secession. In 1861 



A CITIZEN OF THE UNITED STATES. 155 

delegates from forty counties met at Wheeling, and protested 
against secession. This convention organized a provisional govern- 
ment. This was early in the summer. Late in the autumn of the 
same year a convention at the same place formed a constitution for 
a new State, which was accepted by the people the next year ; and 
in that year, 1862, Congress passed an act admitting the State, on 
condition of certain amendments to the constitution. These being 
adopted by the people, the President in 1863 proclaimed the admis- 
sion of the State. 

This State is generally well adapted to agriculture, and it is 
very rich in minerals. Excellent coal is found in great abundance, 
and iron, salt, and petroleum are also met with in many parts of 
the State. Its commerce and manufactures are inconsiderable ; but 
the territory is traversed by railroads, which give great facilities 
for the transport of its mineral and agricultural productions. 

NEVADA. 

This State is bounded north by Oregon and Idaho Territory, 

east by Utah and Arizona, and south and south-west by California. 
It contains 81,539 square miles, or 52,084,920 acres. 

The governor, lieutenant-governor, attorney-general, secretary of 
state, treasurer, surveyor-general, and comptroller, are chosen by 
the people for four years. The number of senators shall not be less 
than one-third nor more than one-half of that of the representatives. 
The representatives hold office two years, and senators four years. 
The judges are chosen by the people; those of the Supreme Court 
hold office six years, and those of the District Courts four years. 

The territory from which this State was formed was a part of 
that ceded by Mexico, under the treaty which in 1848 closed the 
war with that country ; having previously belonged to Upper Cali- 
fornia. The settlement of the State was slow at first, and until the 
discovery of silver attracted immigration ; since that it has been 
rapid. It was organized as a territory in 1861, and admitted as a 
State in 1864. The State may be regarded as a mountain table- 
land. Some of the mountains are heavily timbered; many of 
the valleys, especially where irrigation has been applied, are fertile ; 
and a great variety of vegetable products has been raised in differ- 
ent parts of the State. But the wealth of the State rests upon 
the vast extent and variety of the mineral deposits. The Corn- 
stock and other lodes are exceedingly profitable, and recent dis- 
coveries indicate that the gold and silver mines in this State are 
not surpassed by any in the world. Other valuable minerals 
are found; and salt is especially abundant and accessible, large 



156 THE POLITICAL RIGHTS OF 

quantities lying on or near the surface. It is used in the reduction 
of silver ores, and its abundance causes the deposits of that metal to 
be mined with great profit. 

NEBRASKA. 

This State is bounded north by Dakota, east by Iowa and Mis- 
souri, south hy Kansas, and west by Colorado and Wyoming Terri- 
tory. It contains 76,000 square miles, or 48,640,000 acres. 

It is a part of the Louisiana purchase, and was organized as a 
territory in 1854, and in 1867 was admitted as a State. This act 
of admission contained a condition that there should never be a 
denial of the elective franchise, or any other rights, to any person 
by reason of race or color, except Indians not taxed. It was vetoed 
by President Lincoln, but passed by both Houses of Congress over 
the veto. 

The governor (there is no lieutenant-governor), secretary of state, 
and treasurer are chosen by the people for two years, and the audi- 
tor for four years. The senators are thirteen, and the representa- 
tives thirty-nine in number. There shall never be more than 
twenty-five in the senate, and seventy-five in the house of represent- 
atives. They are chosen at the same time, for two years. The 
judges are elected by the people, for a period of six years. 

Immigration into this State has been rapid and constant. It is 
a prairie State, and the soil, especially of the eastern portion, is 
very fertile. The heavy and closely matted sward requires much 
force to break it, but subsequent culture is easy. Coal-beds are 
found in many places, and worked with some profit. But the de- 
posits of this mineral are not so great as in many of the States. 
Some part of the territory contains valuable timber ; and forest- 
trees have been largely planted : and thus far experiments have 
shown that the soil and climate are very favorable for the cultivation 
of fruit. 

We next give the territories of the United States, in the order 
in which they were organized, closing with the District of Co- 
lumbia. 

NEW MEXICO. 

This territory is bounded north by Colorado, east by the Indian 
Territory, south by Texas and Mexico, and west by Arizona. It con- 
tains 121,000 square miles, or 77,444,000 acres. 

Its executive and judicial officers are appointed by the Presi- 
dent. The judges hold office for a period of four years. The council 
consists of thirteen members, chosen by the people for two years ; 



A CITIZEN OF THE UNITED STATES. 157 

and the house of representatives of twenty-six members, elected 
annually. 

This territory was settled a long time ago by the Spaniards, and 
continued to be a part of Mexico until it was ceded to the United 
States by the treaty of 1848. The white population, which is 
quite large, is mainly Spanish and Catholic ; the Spanish language 
being used by the people, and also in the proceedings of the legis- 
lature. Much of the soil is suited to agriculture or grazing, 
although irrigation is necessary for a large part of it. The mineral 
deposits are large and various, and it is believed they are not yet 
fully discovered. Gold, silver, and copper mines are already worked 
with much profit, and present indications lead to the conclusion 
that the production of silver will be the most profitable of the mining 
industries of the State. Lead, iron, and coal are also found in con- 
siderable abundance, and a large amount of salt is procured from the 
salt lakes. 

UTAH. 

This territory is bounded north by Wyoming and Idaho, east by 
Wyoming and Colorado, south by Arizona, and west by Nevada. It 
contains 88,000 square miles, or 56,320,000 acres. 

Its executive and judicial officers are appointed by the President. 
The council consists of thirteen members, who are elected for two 
years ; and the house of representatives of twenty-six members, 
elected annually. 

This is the great Mormon territory. This people was first estab- 
lished in Ohio, then in Missouri, and afterwards at Nauvoo, in Illi- 
nois. When driven from that place in 1845, after some wandering 
they settled at the Great Salt Lake in Utah in the autumn of 1848. 
They were not very numerous ; but a most energetic and effectual 
system of conversion and immigration brought to them great num- 
bers from Great Britain, Norway, and Sweden, Germany, Switzer- 
land, and France. In 1849 they organized a State, under the name 
of Deseret, and framed a constitution, which they sent to Washing- 
ton ; but Congress would not recognize the new State, but organized 
the Territory of Utah under the common territorial laws, and Presi- 
dent Fillmore appointed Brigham Young governor. His violence 
in the following year, and his defiance of the laws of the United 
States, caused the removal of Young as governor, and the appoint- 
ment of Colonel Steptoe of the army. This gentleman arrived in 
Utah in 1854, but concluded that it would not be well to assume 
the office of governor ; and after a short time he resigned the office, 
and removed to California, with the soldiers he had brought with 
him. The outrages and usurpations of the Mormons continued, and 



158 THE POLITICAL RIGHTS OF 

in 1857 President Buchanan appointed Alfred Cumraing Governor 
of Utah, and Judge Eckels chief justice, and sent them with a force 
of 2,500 men, who were to sustain them in the discharge of their 
duties. Difficulties still continued ; but a kind of peace was patched 
up in 1858, the President offering pardon to Mormons who would 
submit to the federal authority, and the heads of the church accept- 
ing the offer. Since that time there has been no open and violent 
rebellion, but constant difficulties have been recurring, sometimes of 
a threatening character. Brigham Young is no longer governor, 
but, as president of the Mormon church, holds, in fact, the supreme 
authority. As is well known, polygamy is practised here, not merely 
as a permitted thing, but as in itself good and desirable. 

The industry and skilful cultivation of the Mormons are quite 
remarkable; and the soil and climate are upon the whole favorable 
to agriculture, although artificial irrigation is very generally neces- 
sary. This territory does not invite a large accession of people, 
except of those who become Mormons ; but they have a very large 
number of converts in Europe, who come over to Utah as means are 
provided for them. 

WASHINGTON". 

This territory is bounded north by the British Possessions, east 

by Idaho, south by Oregon, and west by the Pacific. It contains 
70,000 square miles, or 44,800,000 acres. Formerly the northern 
part of Oregon, it was organized as a territory in 1853. 

The executive and judicial officers are appointed by the Presi- 
dent. The council consists of nine members, elected for three years; 
and the house of representatives of thirty members, elected for one 
year. The territory is divided into three districts for judicial pur- 
poses, and in each of them a prosecuting attorney is chosen by the 
people for two years. 

Although so far north, the climate is very mild ; and it is not 
uncommon for the grass to be growing through the winter. It is 
said to resemble England in point of climate ; and, like that, while 
well adapted to wheat and fruits of many kinds, does not permit the 
profitable culture of Indian corn. Its forests abound in lumber of 
great variety and of the greatest excellence. The manufacturing of 
this is now very large and rapidly increasing, and great quantities are 
already exported to various countries in the world. Gold has been 
found and worked, but not as yet to great profit. Coal is supposed 
to be abundant. Probably the fishing interests are likely to be, in 
coming ages, the principal industry of the country. Salmon, halibut, 
and cod are taken in the greatest abundance. Hereafter, when the 
country fills up with people, its commercial facilities will doubtless 



A CITIZEN OF THE UNITED STATES. 159 

be taken advantage of. The coast has many excellent harbors, and 
the Columbia River is navigable through a great part of its course. 
Public lands open to immigrants are still abundant. 

COLOEADO. 

This territory is bounded north by Nebraska and Idaho, east by 
Nebraska and Kansas, south by the Indian Territory and Mexico, 
and west by Utah. It contains 104,000 square miles, or 66,560,000 
acres. 

The executive and judicial officers are appointed by the Presi- 
dent. The legislature is composed of a council of thirteen members, 
and the house of representatives of twenty-six members, who are 
elected annually. 

It was formed from parts of the surrounding territories, and 
organized as a territory by itself in 1861. In 1865 a constitution 
was formed, and adopted by the people. A bill to admit Colorado 
as a State passed Congress in the next year, but was vetoed by the 
President. In the following year, 1867, another bill of admission 
passed through Congress, and this also was vetoed by the President, 
and Colorado remains a territory. 

Much of this territory is well adapted to agriculture and stock- 
raising, both of which pursuits are now carried on extensively and 
profitably ; but mining will probably continue to be the principal 
industry of the territory. The deposits of gold and silver appear 
to have no limit in their supply, excepting the cost of working them ; 
and the progress of science and mechanical invention are every year 
making this work easier and less costly. 

DAKOTA. 

This territory is bounded north by the British Possessions, east 

by Minnesota and Iowa, south by Iowa and Nebraska, west by Mon- 
i ruia and Wyoming. It contains 152,000 square miles, or 97,280,000 
acres. 

The executive and judicial officers are appointed by the Presi- 
dent. A very large proportion of the territory is still unoccupied, 
except by Indians. While sufficiently well adapted to agriculture, 
and with valuable and various mineral deposits, discovered or indi- 
cated, it does not invite immigration by that abundance of the 
precious metals which characterizes some of the western and south- 
western States; and the numbers and hostility of the Indian tribes 
living within the territory constitute a hinderance to immigration. 
But this hinderance will before long pass away; and it is believed 



160 THE POLITICAL RIGHTS OF 



that the climate, soil, abundance of public land, and the promise of 
rich mineral deposits, will before long cause a rapid increase of popu- 
lation. 

ARIZONA. 

This territory is bounded north by Utah, east by New Mexico, 
south by Mexico, and west by Nevada and California. It contains 
114,000 square miles, or 72,960,000 acres. 

This territory was contained in the region obtained from Mexico 
in 1854. It was organized as a territory in 1863. Its executive 
and judicial officers are appointed by the President. 

It contains a large extent of the Colorado River and valley ; and 
early in the last century many flourishing settlements were made 
within it. The ruins of their buildings, some of which, the cathe- 
drals especially, were large and costly, and the remains of an excel- 
lent system of irrigating canals, all show the numbers, skill, and 
industry of the population then existing in that region. Since it 
has been in our possession, the depredations of the savages have 
prevented settlements, except in the southern part, and along the 
Colorado or near to it, upon its principal tributaries. Its northern 
part is still unexplored by the whites, and remains in the almost un- 
disturbed possession of the Indians. There are extensive valleys of 
remarkable fertility, and adapted to various kinds of agriculture ; and 
in the southern part of the territory it is believed that the climate 
permits the profitable cultivation of sugar and cotton. The Colo- 
rado River is navigable for over six hundred miles from the ocean, 
this navigable portion reaching into and beyond Arizona. There 
are strong indications of extensive and various mineral deposits of 
the greatest value, and in some places these are ascertained and are 
now worked. 

IDAHO. 

This territory is triangular in shape, bounded on the north-east 

by Montana, east by Wyoming, south by Utah and Nevada, and 
west by Oregon and Washington. It contains 91,000 square miles, 
or 58,240,000 acres. 

This territory was organized in 1863, and its executive and judi- 
cial officers are appointed by the President. It consists in large 
part of table-lands and mountainous country, which cause the 
winters to be cold; they are, however, dry and healthy. In the 
valleys much soil is found suited to tillage, and large crops of cereals 
are raised with great profit ; and, upon the whole, the agricultural 
population of the country is now well established and increasing. 
Mineral deposits of great variety and high promise are found exten- 



A CITIZEN OF THE UNITED STATES. \MJ 

sively, and some of them have been profitably worked. Further 
improvement in the method of producing and working the ores, and 
a greater facility of transportation, will no doubt invite a large 
immigration. 

MONTANA. 

This extensive territory is bounded north by the British Posses- 
sions, east by Dakota, south by Wyoming, and south-west by Idaho. 
It contains 144,000 square miles, or 92,160,000 acres. This territory 
was organized in 1864. The executive and judicial officers are 
appointed by the President. 

This territory is very mountainous ; but the valleys are extensive, 
and the land in them is exceedingly fertile. Grazing lands, well 
adapted to stock-raising, are scattered through the territory. Irri- 
gation is necessary over a large part of the cultivated land ; but the 
mountain streams supply water in abundance. Timber, stone, and 
brick-clay for building abound everywhere. It is, however, its mine- 
ral deposits which promise great prosperity to the territory, when 
they are fully developed and worked. Some very rich silver lodes 
have been ascertained, and expensive machinery is now working 
them with great success. Indications lead those who are acquainted 
with the subject to the belief that this territory will become one of 
the most productive mining regions in the country. Coal is also 
found, but not to any very great extent, or of any special value. 
Copper and lead deposits are numerous, but have not yet been 
largely worked. When railroad facilities for trade and intercourse 
are increased, this territory may well be expected to attain to great 
prosperity. 

WYOMING. 

This territory is bounded on the north by Montana, east by 

Dakota and Nebraska, south by Colorado and Utah, and west by 
Utah and Idaho. It contains 87,000 square miles, or 55,680,000 
acres. 

This territory was organized in 1868. The executive and judi- 
cial officers are appointed by the President : the governor, judges, and 
attorney for a term of four years. The council consists of nine 
members, chosen for two years, and their number may be increased 
to thirteen. The house of representatives has thirteen members, 
chosen for one year, and their numbers may be increased to twenty- 
seven. The Rocky Mountains, the Big-Horn and Rattlesnake Moun- 
tains, and the Black Hills pass through this territory, and cause a 
larger part of it than of almost any other territory to be mountainous ; 
but numerous valleys and some plains are well adapted to cultiva- 

11 



162 THE POLITICAL RIGHTS OF 

tion. The Pacific Railroad crosses the territory. Deposits of gold 
have been discovered in various parts of it, which are considered of 
great promise ; but they have not yet been largely worked. 

ALASKA. 

This territory consists of the Russian possessions in North 
America which were ceded by Russia to the United States in 1867 
for $7,200,000. It is bounded south by latitude 54° 40', and east by 
longitude 141°, west by the Pacific and Behring Straits, and extends 
as far north as the continent. 

It has not yet been organized as a territory; but in 1868 a col- 
lection district was established, and the laws of the" United States 
which relate to customs, navigation, and commerce were extended 
over the territory. It embraces the Aleutian Islands, which extend 
more than one thousand miles towards Asia. The climate is very 
much milder than in the same latitudes on the Atlantic coast, and 
the richness of soil is proved by the heavy growth of timber, which 
covers a large part of the territory. But it has too much rain and 
too little sunshine to admit of much profitable cultivation. The 
river Yukon is one of the largest that flows into the Pacific, and 
is navigable for most of its length. Among its mountains are some, 
as Mount St. Elias and Mount Fairweather, which are believed to 
be among the highest in JSTorth America. It has some active 
volcanoes. 

This territory can never be largely peopled nor widely culti- 
vated ; but its fisheries, and the furs from the seals which resort 
to the islands, and from the wild animals on the continent, are 
immensely valuable. 

There is a small group of islands in Behring Sea, upon which 
are the only important " rookeries " of the fur-seals now known in 
the world. In the Falkland Islands and elsewhere in the Ant- 
arctic seas, where they were once immensely numerous, they have 
been almost exterminated by a merciless and improvident destruc- 
tion. But the Russians have always protected and preserved the 
rookeries on their islands ; and there is every reason to believe that 
these animals come there now in their breeding seasons as numer- 
ously as ever. As Congress has adopted similar means of pre- 
serving them, it may be hoped that this important source of wealth 
will remain undiminished. 

In 1870 these seal islands were leased for a term of twenty years 
to the Alaska Commercial Company of San Francisco. The pro- 
visions of the lease are well adapted to the purpose of preserving 
the number of seals unimpaired. The islands are placed under the 



A CITIZEN OF THE UNITED STATES. 163 

exclusive possession of the company, and constant and watchful 
care is taken to keep off intruders. The company is permitted to 
kill one hundred thousand seals in each year, which is but a small 
part of what might be killed, for a time, if there were no systematic 
preservation. For these seals the company pay to the natives who 
take them forty cents each, and to the government $2.50 each, which, 
with an annual bonus of $50,000, gives a net revenue of $300,000. 
The seal-skins are sent to London in an undressed state, and there 
sold in that condition for about $8.00 each. 

INDIAN TERRITORY. 

This territory is bounded north by Kansas, east by Missouri and 
Arkansas, and south and west by Texas. It contains about 70,000 
square miles, or 44,800,000 acres. 

This territory has been set apart by the United States as a per- 
manent home for the Indians who are native to the territory, and 
also for those who have been removed thither from other regions. 
It has never been organized as a territory, and is all that remains 
of the Louisiana purchase not admitted as States or organized 
as territories. Each tribe of Indians owns the portion allotted 
to it by the United States. They are allowed to make their 
own laws, and live after their own habits and pleasure in all 
respects. If crimes are committed by them against white men, 
the Indians may be tried and punished by the United States 
courts sitting in the districts of the adjoining States of Arkansas 
and Missouri. A vast tract of country, commonly known as the 
great American Desert, most of which, as is now believed, can never 
be brought under profitable cultivation, extends over the northern 
and western portion of the territory ; but in the remainder exten- 
sive plains, with the hills and valleys, offer abundance of cultivable 
land for the support of the Indians, should they become civilized and 
industrious. Some of the tribes have already become so to a con- 
siderable extent. They have churches, schools, and a form of govern- 
ment resembling those of the adjoining States. The rest of them, 
who adhere to their wild life as hunters, still find in the territory 
abundance of wild animals, although these are fewer than they were. 
Most of the Indians, and all in some circumstances, receive assist- 
ance from the United States. 

DISTRICT OF COLUMBIA. 

This district is bounded north-east and south by Maryland, and 
west by Virginia. Its area is now 55 square miles, or 35,200 acres. 



1(31 THE POLITICAL RIGHTS OF 

During" the revolutionary war, and from that time until the 
constitution was adopted, Congress met at Philadelphia, Annapolis, 
Princeton, Trenton, and New York. When the government was 
organized under the constitution, an earnest discussion, exhibiting 
much strong feeling, took place in Congress as to where the national 
capital should be located. Each of the principal cities in the Middle 
States had its advocates. Perhaps it was desired to avoid giving 
any one of them an advantage which others claimed ; and for this 
and other reasons it was determined to locate the capital in some 
new place, and then the undoubted wishes and opinions of Wash- 
ton had influence in fixing the place. In 1790 an act was passed, 
providing, " That a district of territory on the river Potomac, at 
some place between the mouths of the eastern" branch and the 
Connogacheague be, and the same is hereby accepted for the per- 
manent seat of the government of the United States ; " and that 
Congress should sit in Philadelphia until November, 1800, and then 
should remove to the selected district. It was agreed that this 
district should be a square of ten miles, or one hundred square 
miles. Of this one hundred miles, about fifty-five miles lying to the 
north-east of the Potomac was ceded to the United States by 
Maryland, in 1788 ; and the next year Virginia ceded about forty- 
five square miles lying on the other side of the Potomac. So the 
district remained nearly sixty years, when, in 1846, that part of it 
which lay on the Virginia side of the Potomac was ceded back to 
that State, 

The Constitution of the United States gives to Congress exclu- 
sively control over the district, which has one delegate in Con- 
gress. The judges, four in number, are appointed by the President, 
and hold their office for life, or during good behavior. Within the 
district are the cities of Washington and Georgetown, each of which 
has its own municipal government, that can lay taxes for municipal 
purposes. 

The city of Washington lies at the head of the navigable por- 
tion of the Potomac, and is about three hundred miles from the 
ocean, by that river and Chesapeake Bay. It was believed at the 
time of this selection that its position on the Potomac would give 
it eventually an extensive commerce ; but that hope has not as yet 
been verified, The climate is warm and damp, and parts of the dis- 
trict are subject to summer and autumnal fevers, and other effects of 
local miasma. 

The city of Washington is the capital of the nation, where large 
expenditures are made, not only by members of Congress, but by 
all the officers of government residing there. It has already grown 
to be a considerable city, and is growing, if not rapidly, yet at a rate 



A CITIZEN OF THE UNITED STATES. 165 

which indicates a large population in the future. The city contains 
the Capitol, in which are rooms for each house of Congress, for the 
Supreme Court, and for other purposes. The entire length of this 
building is 751 feet, and its greatest depth is 324 feet. The district 
contains also the executive mansion, often spoken of as the " White 
House," and buildings for the several departments of government ; 
for the patent office, the post office, and the Smithsonian Institution. 
There are also a national observatory, a national printing-office, 
a navy yard, armory, military asylum, and many other public 
buildings. 



We here close our brief account of the States and Territories 
comprised within the United States of America. A learned lawyer 
in Virginia, in his commentary on Blackstone, said, in 1803: "The 
whole number of senators is at present limited to thirty-two. It 
is not probable that it will ever exceed fifty ! " Now it is seventy- 
four. Let us also contrast the position which this country held 
among the nations of the world when the constitution was formed, 
with that which it holds now. At that time, Jay, Madison, and 
Hamilton wrote the papers which were afterwards published as 
" The Federalist." There could be no higher authority than that of 
these three men. In No. 62, this is the description of our country: 
" She finds that she is held in no respect by her friends ; that she 
is the derision of her enemies ; and that she is a prey to every 
nation which has an interest in speculating on her fluctuating coun- 
cils and embarrassed affairs." Compare this with the descriptioL 
which would be given of her now, even by those who were least 
disposed to speak well of her ! How much of this wonderful growth 
in strength and prosperity do we owe to our admirable constitu- 
tion ? 

We cannot read the future ; but of this we may be sure : if we 
grow proud of our prosperity as if it were our own work ; if the 
people of this country think they have the right to indulge their 
passions, prejudices, and fantasies, because they have the power to 
do so ; if their liberty is corrupted into license ; if different localities 
and different interests contend for special advantages, forgetting the 
equal rights of their brethren and neighbors, — all the lessons of 
history must be false, and all the teaching of human experience 
vain, if a sure and swift retribution does not overtake us, and our 
decline and decay tell to all coming ages a story as marvellous as 
that of our past progress and our present prosperity. 

Let us hope for better things. Let us hope, and each one, in his 
place and way, strive, to do what will best secure and promote this 



166 THE POLITICAL RIGHTS Ob 

prosperity. Let us guard our freedom from corruption, never for- 
getting that the only way to preserve our freedom is to use it aright. 
So let us do ; and it may well be that we have yet seen only the 
morning brightness of a day of which the meridian splendor will 
surpass anticipation, and whose sun will not go down. 



Table VII., annexed to this chapter, gives the square miles of 
surface of each State, its population in 1870, its population in 1790, 
its rank in population in 1780, its rank in population in 1870, and 
the present number of representatives in Congress to which it is 
entitled. 

The table permits many interesting comparisons of the States 
with each other, and of the present with the past. It shows the 
vast disparity between the States in extent, — Texas, the largest, 
being more than two hundred times as large as Rhode Island ; and in 
population, — New York, the most populous, having more than one 
hundred times the population of Nevada. It also shows the great 
and rapid increase of population through the whole country ; and 
the rank of the States when measured by population, and the 
changes which have taken place in this rank in the last eighty 
years. 

It will be seen that the population of the States was, in 1790, 
3,942,270 ; there were then no territories. In 1870 the population 
of the States was 38,115,641, and of the territories, 442,730, making 
the whole population of the United States 38,558,371 ; showing 
that the increase of the population in these eighty years was almost 
eightfold. When the first House of Representatives was organized, 
the whole number was 65, now it is 292. 



A CITIZEN OF THE UNITED STATES. 



167 



VII. 



States. 



Alabama . . . 

Arkansas . . , 

California . . , 

Connecticut . , 

Delaware . . « 
Florida . . . 

Georgia . . , 

Illinois . . . . 

Indiana . . , 

Iowa . . . , 

Kansas . . . , 

Kentucky . . , 

Louisiana . . , 

Maine . . . . 

Maryland . . , 

Massachusetts . 

Michigan . . , 

Minnesota . , 

Mississippi . , 

Missouri . . , 

Nebraska . . , 

Nevada . . , 
New Hampshire 

New Jersey . , 

New York . , 

North Carolina . 

Ohio . . . . 

Oregon . . . , 

Pennsylvania , 
Rhode Island 

South Carolina . 

Tennessee . , 

Texas . . . . 

Vermont . . . 

Virginia . . . 

West Virginia . 

Wisconsin . . 



I. 



60,722 

62,198 

188,981 

4,750 

2,120 

59,248 

58,000 

55,410 

33,809 

65,045 

81,318 

37,630 

41,346 

35,000 

11,124 

7,800 

66,451 

83,531 

47,156 

65,350 

75,995 

81,539 

9,280 

8,320 

47,000 

60,704 

89,964 

95,274 

46,000 

1,306 

34,000 

45,600 

274,356 

10,212 

38,352 

23,000 

53,924 



996,992 

435,450 

560,247 

637,454 

125,015 

187,748 

1,184,109 

2,539,891 

1,680,637 

1,194,020 

364,399 

1,321,011 

726,915 

626,915 

780,894 

1,457,351 

1,084,059 

439,706 

827,922 

1,721,295 

122,993 

42,491 

318,300 

906,096 

4,382,759 

1,071,361 

2,665,260 

90,923 

3,521,961 

217,353 

705,606 

1,258,520 

818,579 

330,551 

1,225,163 

442,014 

1,054,670 



251,002 
69,096 

' 82,548 



73,677 

* 96,540 
319,728 
378,787 



141,885 
184,139 
340,120 
393,761 



434,373 

68,825 

249,073 

35,691 

* 85,425 
747,610 






ai 



•2 c 

as- 



8 
4 
4 

4 
1 
2 
9 

19 

13 
9 
3 

10 
6 
6 
6 

11 
9 
3 
6 

13 
1 
1 
3 
7 

33 
8 

20 
1 

27 
2 
5 

10 
6 
3 
9 
3 
8 



Population of the States in 1790 8,942,270 

» in 1870 88,115,641 

„ „ Territories in 1870 442,730 

Total population in 1870 88,658,371 

Total number of representatives in 1874 292 



BOOK SECOND. 

THE PERSONAL RIGHTS OF A CITIZEN OF THE 
UNITED STATES. 



BOOK SECOND. 

THE PERSONAL RIGHTS OF A CITIZEN OF THE 
UNITED STATES. 



These rights will be considered under seven heads : First, the 
right to personal liberty ; second, the right to personal security ; 
third, the right to freedom of speech and writing; fourth, the right 
to freedom of religious faith and profession ; fifth, military righta 
and duties ; sixth, the rights and duties of suffrage ; seventh, the 
rights and duties growing out of the domestic relations. 

There are many provisions in the constitution intended to secure 
all these important rights, except those last mentioned. They will 
be considered in this chapter ; and in connection with some of them, 
the statutory provisions of Congress or of the several States which 
relate to the same or to connected subjects, and carry into effect 
the provisions of the constitution and make them specific and 
practical 



CHAPTER I. 
THE WEIT OF HABEAS COKPUS. 

The most efficacious and indispensable of all the provisions of 
the constitution in respect to personal liberty is the following, which 
relates to this writ : — 

" The privilege of the writ of habeas corpus shall not be sus- 
pended, unless, when in cases of rebellion or invasion, the public 
safety may require it." It must be noticed that this writ cannot be 
suspended, although the public safety may be thought to require it, 
unless there is at that time rebellion or invasion ; and not if either 
or both of these exist, unless the public safety requires it. A law, 



17'2 THE PERSONAL RIGHTS OF 

passed by Congress in 1842, concerning the power of the courts or 
judges of the United States to grant writs of habeas corpus, ex- 
tended this power to all cases of a prisoner or prisoners in jail or 
confinement, who are subjects or citizens of foreign States, and 
domiciled therein. 

The nature and effect of this writ should be fully understood. 

A writ, in legal meaning, is a written command by the sovereign, 
attested by a competent court, addressed to some person or persons, 
and requiring him or them to do the thing specified or described in 
the writ. In this country the people are the supreme sovereigns; 
then the United States are sovereign, and then each State is sover- 
eign ; and in this country writs begin, " The United States of 
America to," <fcc. ; or, " The people of New York to," &c. ; or, " The 
Commonwealth of Massachusetts to," &c. Usually most writs are 
addressed to sheriffs, who are the executive officers of the sovereign, 
and the writ of habeas corpus is generally so addressed. Formerly 
all the writs of England were in Latin ; and while we were English 
eolonies, the law and legal processes of England were ours ; and both 
in England and in this country writs are still called by their most 
important Latin words. 

" Habeas corpus " means "you may have the body ; " and the writ 
of habeas corpus is a command of the sovereign to the sheriff to whom 
it is addressed to have the body of the person named therein, who 
is the party deprived of his liberty, and bring him before the court, 
at a certain place and time, with the cause of his imprisonment. 
The sheriff executes this writ by bringing the person before the 
court; and the court then investigates the case, and, if the imprison- 
ment be illegal, commands his discharge. 

It will be seen at once that if this writ be properly executed it 
makes illegal imprisonment impossible ; and in law any restraint 
of a person anywhere, or any illegal arrest, is imprisonment. The 
extreme importance of this provision to secure personal liberty 
would seem to be obvious at first sight, and yet we cannot compre- 
hend it fully unless we are taught the lessons of history. For 
example : the King of France before the Revolution was a despot, 
with nothing to limit his power or control his will. And why was 
this? Because he and his ministers could imprison any man in the 
Bastile, or any other prison, at any time, for no cause whatever but 
their own will, and keep him in prison at their own pleasure ; and 
this often without letting any person connected with the prisoner 
know what had become of him. The Revolution came, and put a 
stop to this outrage upon reason and humanity. Some of the kings 
of England claimed, and to some extent exercised, the same power ; 
but it was resisted, and was never carried so far in England as in 



A CITIZEN OF THE UMTED STATES. 173 

France ; and this is one among the reasons why England escaped 
the bloody revolution which for a time desolated France. Various 
laws were passed in England to prevent this illegal restraint of 
liberty ; but they were evaded until, in 1679, a law was enacted 
giving the writ of habeas corpus to all imprisoned persons, and 
strengthening the writ with various provisions, which made it per- 
fectly effectual. Since that time there has been no arbitrary im- 
prisonment in the British dominions ; and our wise fathers inserted 
in the constitution the clause above stated, to make it certain that 
there should be no arbitrary imprisonment in the United States. 

The provision in the constitntion wonld not of itself effect this 
purpose, because it does not provide in what manner and by what 
persons, and for what causes, this writ of habeas corpus should be 
issued or granted. Laws making all these provisions have been 
enacted by Congress, and by the various States ; and very various 
and well contrived are the provisions which are intended to make 
this writ an easy, prompt, and effectual remedy for or preventive of 
illegal restraint. These may be stated generally, thus: — 

I. The writ must be granted as a matter of right to every ap- 
plicant, by any of the justices of the higher courts ; and if they are 
absent or out of reach, by any justices of a lower court, down to 
justices of the quorum. In this respect the law covers a wide range, 
for the purpose of making it sure that every applicant may find some 
one who must grant him this remedy. 

II. It makes no difference whether a court be sitting or not, or 
where the justice is, when the writ is prayed for, as he must then 
and there grant it. 

III. It must be granted not only if the person restrained of his 
liberty himself applies, but to any one applying for him. If the 
applicant does not know the name of the imprisoned party, the 
best description which he can give of him is sufficient. 

IV. The application must be in writing, and must be verified by 
the oath of the applicant. 

V. The writ commands the sheriff, or other person to whom it is 
directed, to have the body of the person restrained of his liberty 
without delay before the justice issuing the writ, or before some 
other tribunal, court, or person competent to try the questions 
which the case may present; and the sheriff is also usually com- 
manded to summon the person restraining the prisoner to 'be there 
also, and bring with him the cause of the restraint ; and further, 
that all parties then and there submit themselves to whatever may 
be lawfully adjudged or ordered in their behalf. The provisions of 
the writ vary somewhat, and its language more, but it is always 
substantially as above. 



174 THE PERSONAL RIGHTS OF 

VI. The sheriff, or other officer or person, to whom the writ is 

directed, must obey promptly, and return the writ forthwith, as 
directed therein, with a full statement of his doings. 

VII. If the writ he made returnable to a court, and the court is 
not then in session, it must be returned before the proper magistrate, 
in his chambers. 

VIII. On the return of the writ, the alleged prisoner being pres- 
ent, if possible, the case is tried ; and unless legal and sufficient cause 
for his imprisonment is shown, it is ordered that he be discharged 
at once ; or if the tribunal see good reason to withhold a full and 
entire discharge, and if he be held for some offence or cause that is 
bailable, the court, or the magistrates trying the case, may order that 
he be discharged on giving reasonable bail, which the court or magis- 
trate usually fixes. 

IX. The party restrained or imprisoned is not discharged, but is 
remanded into his imprisonment, if it be shown that he is imprisoned 
by lawful warrant for crime, or in execution, civil or criminal. Some 
of the State statutes contain these exceptions, others do not, but 
they are always regarded. 

X. If a' person has been discharged on habeas corpus, he cannot 
again be imprisoned or restrained of his liberty for the same cause. 

XI. Finally, the statutes make sure of the issuing of the writ by 
the court or magistrate applied to, and full and prompt obedience 
to it by the officer or other person to whom it is directed, by very 
heavy penalties. Moreover, any person whose application for the 
writ is refused by one magistrate may apply to another ; and the 
number of those to whom he may thus apply is so large, that it is 
hardly possible that all of them should be so corrupted or intimi- 
dated as not to render due obedience to the law. 

This writ, important as it is, is not often heard of in practice ; and 
the reason of this is, that the existence of the right, and the ease and 
certainty with which the law may be invoked in any case of false or 
wrongful imprisonment, prevents such imprisonment from being 
attempted. Sometimes the writ is in these days resorted to by 
parents of minors who have enlisted without their permission, or 
by those whose children are illegally withheld from them on any 
ground. It has been decided that the proclamation of martial law 
by a military officer is not sufficient to suspend the act, because that 
can be done only by a legislature. 

PRACTICE. 

Any person desiring the writ may apply to any court or magis- 
trate authorized to issue the same, by complaint in writing, signed 



A CITIZEN OF THE UNITED STATES. 175 

by the party imprisoned, or by some person in his behalf. The com- 
plaint should be verified by the oath of the person making the appli- 
cation, or by some person in his behalf. 

The complaint need not be in any special form ; but it should 
set forth substantially the following things: — 

First. The person by whom and the place where he is imprisoned 
or restrained (naming the prisoner and the person detaining him 
if their names are known, and describing them if they are not 
known). 

Second. The cause or pretence of such imprisonment or restraint, 
according to the knowledge and belief of the person applying. 

Third. If the imprisonment or restraint is by virtue of a war- 
rant or other process, a copy thereof should be annexed, unless it is 
made to appear that such copy has been demanded or refused, or 
that for some sufficient reason a demand therefor could not be 
made. 

The court or magistrate to whom the complaint is made should, 
without delay, award and issue the writ of habeas corpus substan- 
tially in the form below, and the sheriff must forthwith execute the 
same. 

(9.) 

A WRIT OF HABEAS CORPUS. 
[Seal.] State (or Commonwealth) of 

To the Sheriffs of our several Counties and their respective Deputies: — 

We command you, That the body of (name of imprisoned party), of 
(his residence), by (name of party imprisoning), of (his residence), imprisoned 
and restrained of his liberty, as it is said, you take and have before (name 
of the court or magistrate to whom the writ is returnable), a justice of our 
(name of court) , at (place where the court or magistrate will sit to receive 
the return), immediately after receipt of this writ, to do and receive what 
our said justice shall then and there consider concerning him in this behalf; 
and summon said (name of party imprisoning) then and there to appear 
before our said justice, to show the cause of the taking and detaining of 
said (name of party imprisoned), and have you there this writ, with your 
doings thereon. 

Witness (name of justice or magistrate issuing the writ) at (place of issuing 
the same), on this (time of issuing) day of in the year 

If this writ is issued by the court while in session, it should be signed 
by the clerk of the court, otherwise by the magistrate issuing the same; 
and in either case it may be served in any county by a sheriff or deputy- 
sheriff of the same, or of any other county in the State 



176 THE PERSONAL RIGHTS OF 

CHAPTER II. 
THE EIGHT TO PERSONAL SECURITY. 

SECTION I. 
TRIAL BY JURY. 

A provision to secure a fair trial to every accused person was 
made by the constitution, in the third article, which related to the 
judicial power, by the following clause: — 

" The trial of all crimes, except in cases of impeachment, shall 
be by jury, and such trial shall be held in the State where the said 
crimes shall have been committed; but when not committed within 
any State, the trial shall be at such place or places as the Congress 
may by law have directed." 

In the amendments to the constitution, a similar provision for the 
security of the accused is made in article fifth of the amendments, 
by declaring that " no person shall be held to answer for a capital, 
or otherwise infamous crime, unless on a presentment or indictment 
of a grand jury, except in cases arising in the land or naval forces, 
or in the militia, when in actual service in time of war or public 
danger;" and in article sixth of the amendments, that "in all 
criminal prosecutions the accused shall have a speedy and public 
trial by an impartial jury of the State and district wherein the crime 
shall have been committed, and that this district shall have been 
previously ascertained by law;" and in the seventh article of the 
amendments, that " in suits of common law, where the value in con- 
troversy shall exceed twenty dollars, the right of trial by jury shall 
be preserved : and that no fact tried by a jury shall be re-examined 
in any court of the United States otherwise than according to the 
rules of the common law." 

All these provisions and precautions to secure a presentment and 
a trial by.jury are very minute and precise, and might seem to be 
extreme to one who had not fully considered, under the light thrown 
on the subject by the history of other nations, the inestimable value 
of the institution of a jury. 

There are two kinds of jury, and each of them is entirely distinct 
from the other in its functions. Both of them are referred to in the 
constitution, in the clauses above quoted. The grand jury must 
consist of twelve, and may be larger, up to the number of twenty- 



A CITIZEN OF THE UNITED STATES. 177 

three. Its duty is to hear complaints brought before it by the prose- 
cuting officer. This the officer does by bringing before the grand 
jury a bill of indictment, which means a written accusation of some 
party charging him with a crime, and such evidence as can be offered 
to support the accusation. This indictment the grand jury either 
find or ignore, which means dismiss. If they find the bill, which 
means that they find it to be true, the party charged may then be 
arrested and put upon his trial. If they dismiss the bill, there is an 
end of it. The grand jury acts in secret, and only on the evidence 
which the prosecuting officer brings before them. 

Beside the indictment, the grand jury may make a presentment, 
by which they charge a party with wrong-doing of any kind, from 
their own knowledge, or from any evidence they have; but the 
prosecuting officer must afterwards frame an indictment founded on 
the presentment before the party presented can be put to his trial. 
From this we may see the effect of the provision, that no person 
shall answer for a capital, or otherwise infamous crime, unless on a 
presentment or indictment of a grand jury. This effect is, that a 
man cannot be put upon his trial by any court or magistrate or 
officer, at their j)leasure, or for any reason, but only on the accusa- 
tion, solemnly made, by a jury of his countrymen, taken from the 
community. Here, too, we must go to history if we would know 
the enormous abuses against which this provision secures the citizens 
of this country ; for we may read there, that when a government, or 
its members or officers, have the power of charging whom they will, 
with what crime they will, and bringing him to trial therefor, at their 
own pleasure, personal liberty then and there becomes impossible : 
it ceases to exist, because the government has in its hands a means 
of coercion which nothing can resist. 

The other jury is a trial jury. Such a jury consists of twelve 
men, impartially selected, according to law ; and they must unani- 
mously concur in the guilt of a prisoner before a conviction can 
be had. 

The way in which juries, both grand and petit, are selected, is 
usually this : jurors for both juries are returned by the sheriff of 
each county (or, for the United States courts, by the marshal of 
each district), in obedience to a writ, called a venire (which is a 
Latin word, meaning " to come "), which writ commands him to 
summon " to come " to the court at the appointed time the proper 
number of persons. The authorities of every city and town, or 
sometimes county, put into a box the names of all persons therein 
qualified and bound to serve as jurors. Usually these are all per- 
sons qualified to vote, with some special exemptions. When notice 
is given them to select and return the names of jurymen, the proper 

12 



178 THE PERSONAL RIGHTS OF 

officer (as determined by statute or usage) draws a name from the 
box; and if persons are wanted both for grand and petit juries, 
usually the first twenty-three drawn are returned as grand jurors, 
and those that come after are for petit jurymen, until the necessary 
number is made out, which is usually enough to supply two or three 
juries. The names of these persons are given to the sheriff or mar- 
shal, and entered by him in the return of his venire. As no one 
can be called upon to discharge this duty, which is sometimes very 
burdensome, often er than once in a certain number of years (usually 
three), when any one's name is drawn, the day is indorsed upon the 
paper ; and if it be seen that the same person has been drawn within 
three years, the paper is put back into the box and he is considered 
as not drawn. The grand jury is "impanelled" when sworn and 
organized. A petit jury is impanelled when the names are called 
over, and the first twelve who are present, and are not excused or 
objected to, are sworn, and set apart as the jury. It is common in 
most of our courts having much business to impanel two juries; 
that sitting on the right hand of the court being called "the first 
jury," and that on the left hand "the second jury." Sometimes, 
though very seldom, and only when the urgent pressure of business 
requires it, a third jury is impanelled. The purpose in impanelling 
more than one jury is, that while one is charged with a case and is 
deliberating, another case may be tried before another jury. Upon 
trials before a jury, the court are the exclusive judges of the admis- 
sibility or competency of evidence ; but if it be admitted, the jury 
are the judges of its effect and value. 

The origin of this institution is lost in the obscurity which hangs 
over early English history. It probably existed in an imperfect 
form among the German races who invaded and peopled England. 
It gradually grew up. in that country as the love of freedom and 
justice grew from age to age, and expressed itself in these and other 
institutions of the common law. It was unknown elsewhere in 
Europe, for elsewhere there was not the same vital and enduring 
love of liberty. For the very reason that this love is paramount 
and unfettered in this country, and lies at the foundation of all our 
civil and political institutions, to this country a trial by jury is 
essentially adapted. It sometimes seems to be inconvenient; and 
we hear arguments against the reasonableness of submitting ques- 
tions of extreme difficulty and of the utmost importance to a panel 
composed of twelve men, who are selected, almost by lot, from all 
classes in the community, and who cannot be supposed to bring to 
the weighing of the evidence, and the determining of the questions, 
any training or adaptation for this peculiar work. Against all these 
and other arguments against the jury stands the great fact, that 



A CITIZEN OF THE UNITED STATES. 179 

nothing has ever been contrived which, on the whole, works so 
fairly, is so little open to corruption, and does so much justice. The 
jurymen are taken right out from the community, and to that com- 
munity they return. Wise laws and well-adapted precautions guard 
them, ms far as may be, from improper influence; and while this 
institution, like all other human institutions which must be carried 
into effect by human beings, is always liable to failure and imper- 
fection, it remains much the best institution for its purpose that has 
ever been devised. It is a good thing that the framers of our national 
constitution, and of the many State constitutions which contain 
similar provisions, were so careful to perpetuate this institution, and 
that the people are as determined — as there is good reason to 
believe that they are — to preserve it unimpaired. 

There are other provisions in the constitution, intended to secure 
a fair trial, to which we will allude only generally. These are, that 
no person accused of and tried for crime shall be compelled to be 
a witness against himself; that he shall be informed of the nature 
and cause of the accusation ; that he shall be confronted with the 
witnesses against him ; that he shall have compulsory process for 
obtaining witnesses in his favor, and the assistance of counsel for his 
defence ; and that he shall not be deprived of life, liberty, or prop- 
erty, without due process of law. 



SECTION II. 

NO PERSON SHALL BE TRIED TWICE FOR THE SAME 
OFFENCE. 

The fifth article of the amendments contains this provision : " No 

person shall be subject, for the same offence, to be twice put in 
jeopardy of life or limb." 

The reason for this provision is not so obvious as it is certain. 
It does not apply to civil actions to the same extent. If a person 
is sued for a debt, and either party fails to maintain his suit or 
his defence, and afterwards discovers new evidence which will main- 
tain his suit or his defence, he may often, proceeding according to 
the rules of courts, try his case again. But even in civil suits there 
is a limit to this ; because the whole purpose of the law being to settle 
questions and terminate disputes, it will not permit a question 
which has been settled to be tried again, provided the question had 
been settled after a full and regular trial, and had been the object of 
direct investigation, and the parties have had their attention drawn 
to it in such a way as to warrant the supposition that a new trial 
could only be a repetition of a former trial, — a question tried in 



180 THE PERSONAL RIGHTS OF 

this way, and so settled, shall not be tried again. This rule may be 
expressed thus : A judgment on the same matter at issue, by a 
court which has jurisdiction of this matter, and which makes 
judicial examination into the merits of the question, is a conclusive 
bar against another trial. In Criminal cases, or where a person is 
accused of and tried for an alleged crime, the rule goes much further, 
because the reason of the rule goes further. In every such trial the 
government is the prosecuting party, or the plaintiff; and it would 
be a very dangerous thing if the prosecuting officer, when he has 
caused a man to be tried for a certain offence, and on this trial the 
man has been acquitted, is permitted to bring him up again and 
again for trial, on the alleged discovery of new evidence, or for any 
other reason. This might be so great a mischief that the other 
mischief, which sometimes occurs, can be more safely borne; and 
this occurs when a guilty man is acquitted for lack of evidence, and 
after his acquittal new evidence is found, which, if it had been found 
in season, would have produced his conviction. Hence it is that the 
rule is established that a criminal once acquitted shall not be tried 
again on the same charge. 



SECTION III. 
EXCESSIVE BAIL. 

The eighth article of the amendments declares, " Excessive bail 

shall not be required, nor excessive fines imposed, nor cruel or 
unusual punishments inflicted." This article is an exact copy of 
a clause in the English Bill of Rights, which was adopted at the revo- 
lution of 1688. It provides three further precautions against unjust 
and oppressive treatment of an accused person by the courts. The 
meaning of bail is this: the word comes from a Norman-French 
word,, which means " to deliver." When an accused person would be 
imprisoned to keep him safely until trial, if there are friends who will 
come forward and become bound for him, under a certain penalty, 
to be forfeited if he does not appear when called for and stand his 
trial, he is delivered to them, and they are called his bail. All but 
the highest offences are bailable, as it is termed ; that is, the accused 
may avoid imprisonment by tendering sufficient bail, to be respon- 
sible for him. 

It is obvious that a court, under a pretence of taking bail, could 
keep the accused imprisoned, by requiring so large an amount of 
responsibility that no bail would be willing to incur it. How large 
this amount should be in any case must depend upon the circum- 
stances of the case. This question as to the amount of bail ad- 



A CITIZEN OF THE UNITED STATES. 181 

dresses itself to the discretion of the court. If the crime be great, 
and therefore the need of securing the prisoner for trial is great, 
the court may and usually do, affix the bail at a large sum, — some- 
times a very large sum; although the effect of this may be to 
prevent the accused from obtaining bail. This is a very common 
result. We frequently read in the papers that this or that man, 
accused of burglary, or robbery, is ordered to find bail in a large 
amount, and in want thereof to be committed to jail ; he then goes 
to jail, almost as a matter of course. This is not excessive bail. It 
must be remembered that the purpose of taking bail is not to bring 
money into the treasury, but to secure the presence of the accused 
when wanted. It sometimes happens that the accused runs away, 
leaving the bail to pay the sum for which they are bound ; but this 
was not the object in fixing an amount for the bail; for this was to 
make it reasonably sure that the bail would pioduce the accused. 
This bail becomes excessive when it is out of all proportion to the 
magnitude of the offence, and is much more than enough to give 
reasonable assurance of the presence of the prisoner. If such bail 
be demanded, it is a common thing for the accused to apply, by his 
counsel, to a court having authority in the case, and ask them to 
reduce the bail ; which they will do if good cause be shown. 



SECTION IV. 
EXCESSIVE FINES. 

Imposing a fine is one method of punishing a criminal. History 

tells us that in England instances occurred repeatedly in which the 
government impoverished and crushed an obnoxious person by im- 
posing a fine which took from him all his property. More than this, 
as a criminal, when fined, is ordered to be committed to jail until 
the fine be paid, had such a fine been imposed as it was impossible 
for him to pay, this was, in fact, a sentence to imprisonment without 
relief. It was to prevent such abuses as this that this clause was 
introduced into the English Bill of Rights, and copied into our con- 
stitution. 

CRUEL AND UNUSUAL PUNISHMENT. 

This, too, was one of the ways in which history tells us that 
an arbitrary government has gratified its vengeance against the 
objects of its wrath. It was well to place the clause in the consti- 
tution, as a perpetual reminder that such enormities must not be 
practised here. In this country all punishments are determined by 



182 THE PERSONAL BIGHTS OF 

law ; these are fine or imprisonment, with or without solitary con- 
finement, and with or without hard labor ; but the amount of the 
fine, and the length and character of the imprisonment, are de- 
termined by the statutes, within certain limits. 

SECTION V. 
BILL OF ATTAINDER. 

In the constitution, immediately after the clause prohibiting the 
suspension of the writ of habeas corpus, there follows this clause : 
"No bill of attainder or ex post facto law shall be passed." 

"Attainder" is an English law term, derived from Latin and 
French words, which signify to "stain" or "taint." It means, that 
one who was convicted of treason, or other great crime punishable by 
death, was tainted or corrupted in blood. The effect of which was 
a forfeiture of all his possessions, real or personal, and an incapacity 
of any heirs inheriting from him. In England, when any one holding 
a heritable title was attainted, this title was extinguished, and did 
not go to his descendants. A bill of attainder means an act passed 
by Parliament, by which, without a judicial trial, a person is con- 
victed of some great crime, usually treason, which is punishable by 
death, with loss of all property. The objection to it was, that this 
extreme punishment was inflicted by a legislative body, and not 
after a trial in the law courts, and by due process of law. In the 
history of England this method was often resorted to for removing 
by death those who fell under the displeasure of the king or parlia- 
ment. It was, of course, a tyrannical abuse ; and because it was 
this, or so liable to become this, it was prohibited by the consti- 
tution. 

Sometimes in England another kind of bill, called a "hill of 
pains- and penalties," was passed to punish an obnoxious person ; and 
it differed from the bill of attainder only in this, that it did not inflict 
the punishment of death. It has been solemnly adjudged that the 
prohibition in the constitution against a bill of attainder extends, in 
its force and meaning, to a bill of pains and penalties. 



SECTION VI. 
EX POST FACTO LAW. 

The ninth section of the first article prohibits Congress from 
passing an ex post facto law ; and the tenth section of the same 
article extends the prohibition to the several States. The literal 



A CITIZEN OF THE UNITED STATES. 183 

meaning of these Latin words, which were taken from Latin (or 
Roman) law, mean "from after the fact." It is an awkward phiase, 
either in Latin or English. It may be defined thus: An ex post 
facto law is one which, being passed after an act is committed, makes 
that act punishable, although it was not punishable when committed ; 
or makes it punishable in a different and severer manner from that 
in which it was punishable when committed. This definition show's 
of itself the reasonableness of the prohibition ; for it is obvious to 
common sense that the plainest justice requires that a man should 
not be punished for violating a law which was not a law when he 
committed the act ; and that if he violated an existing law, he should 
know or have it in his power to learn what penalty or punishment, 
he took the risk of. 



SECTION VII. 
THE RIGHT TO ASSEMBLE AND PETITION GOVERNMENT. 

The first article of the amendments to the constitution prohibits 

Congress from passing any law abridging the right of the people 
peaceably to assemble, and to petition the government for a redress 
of grievances. With this we close the list of the provisions of the 
constitution intended to secure to the people their rights. 

It will be observed that there are here two rights secured : one 
is to assemble peaceably ; the other is to petition the government. 
They need not go together. The people may assemble to discuss 
their grievances, and determine upon mutual consultation what 
remedies they will seek. If they do this peaceably, the assembly 
must not be prevented nor interfered with. And one or more of the 
people has the right to petition Congress, and ask for the redress of 
whatever seems to him or to them a grievance, w r ith or without 
assembling with others for that purpose. 

Both of these provisions were inserted in the constitution be- 
cause history had taught our fathers that they were necessary. We 
exercise them continually, in any way we please, and no one thinks 
of preventing our doing so. We may, therefore, think that these 
rights belong to us naturally and necessarily, and wonder that the 
fVamers of the constitution thought it necessary thus solemnly to 
assert and secure them. But they knew how hard it had been to 
maintain the free exercise of these rights in England ; and that the 
framers of the English Declaration of Rights, at the Revolution of 
1688, inserted them in that declaration, because they knew that the 
denial or violation of these rights had been one of those manifesta- 



184 THE PERSONAL RIGHTS OF 

tions and instruments of tyranny which rendered that revolution 
necessary. 

And Congress have perhaps yet to learn, unless they have already 

learned by experience, another thing about them. Congress would 
not attempt to enact a law preventing any persons from sending 
them a petition. This is made impossible, by the provision in the 
constitution. But it is possible for either House of Congress to treat 
a petition with disrespect and contumely, and in this way do what 
they can to prevent the exercise of this right, and to make it in- 
effectual. 

It need not be said that this is a virtual breach of their duty to 
the constitution, and an actual disregard, if not of its words, yet of 
its principles, as certain as if they enacted a law in defiance of its 
express language. If, however, the history of this country shows 
that in a time of excessive party excitement such an abuse was 
possible, it shows also that, if firm and brave men resist it stub- 
bornly, they will surely defeat it. It may well be hoped that what- 
ever has been seen of a disregard of this constitutional provision in 
times past, carried with it a lesson which will prevent a repetition 
of the offence. 



SECTION VIII. 
IMPAIRING THE OBLIGATION OF CONTRACTS. 

We add this topic to this section, although it belongs rather to 

the protection afforded by the constitution to the rights of property. 
The section of the constitution last quoted declares that no 
State shall pass " any law impairing the obligation of contracts." 

The wisdom and justice of this prohibition are obvious. Every 
man acts, or should act, under the law ; and whenever he does any- 
thing in conformity with the law, he has a perfect right to trust to 
the law to support him in what he has done. If he makes a contract 
with his neighbor, he has a right to believe that the law will secure 
to each of them the rights that either party acquires by the con- 
tract ; and will enforce upon each of them the obligations imposed 
upon either party by the contract. If, now, a State has the power 
to interfere, and declare that contract void, and annul or change its 
obligations, it is plain that the whole business of the community 
would be at the mercy of legislators; and all who did business of 
any kind would work in the dark, and be wholly uncertain whether 
what they were doing would have any force or effect. 

Repeatedly have our citizens invoked this provision for their 
protection, and found it efficacious to secure their rights ; and many 



A CITIZEN OF THE UNITED STATES. 185 

and very various are the questions which have arisen under this pro- 
vision. We cannot here give an account of them, for it would 
occupy a large part of the volume. But some things we may say, 
to show how this provision works. 

It is held that an act of incorporation is a charter between the 
State and the stockholders. Therefore, if a charter for a bridge 
declares that no other bridge shall be built within a certain distance, 
a law authorizing another bridge to be built within that distance is 
held by the courts to be unconstitutional, and therefore void. 

If a bank be chartered with certain powers, an act taking away 
or interfering with those powers, or impairing them to the injury of 
the stockholders, is unconstitutional and void. 

A grant of land by a State, and a compact between two States, 
are such contracts, and cannot be subsequently interfered with, unless 
by consent. But an act creating a salaried office is not such a con- 
tract that it cannot be repealed; but the salary due before any 
change in the law must be paid in the terms of the law. 



CHAPTER III. 

THE EIGHT TO FREEDOM OF SPEECH 
AND OF WRITING. 

The same article of the constitution from which we last quoted 

provides that Congress " shall make no law abridging the freedom 
of speech or of the press." Here again we see that this provision 
applies only to the laws of Congress ; but similar provisions are 
made by law in the other States, and in some of them by their con- 
stitutions. The effect of these provisions is, that every man may 
have a right to speak, write, and publish his opinions upon any sub- 
ject whatever, without the need of any prior license or permission, 
and without any prior restraint. Nevertheless, every man both 
speaks and publishes upon his own responsibility ; for it is possible 
to do a grievous wrong to another, in his rights, his peace, his prop- 
erty, and his reputation, by a wrongful speaking or publishing. He 
who commits this offence is punishable therefor, according to the 
character of his offence, either by indictment, as for a wrong com- 
mitted against the public ; or by an action, as for a wrong committed 
against an individual. This offence of wrongful speaking or pub- 
lishing to the injury of the community or of a person is either a 



186 THE PERSONAL RIGHTS OF 

libel or a slander, and the law on these subjects shall be briefly 
stated. 

LIBEL. 

The difference between a libel and a slander consists in this : a 
libel consists in injurious words against another, or harmful to the 
community, which are published. Injurious words spoken, but not 
published, are not a libel, but they constitute a slander. One can- 
not be indicted for slander, but only for libel. Publication may be 
by writing or printing, or by a picture or caricature, if these are 
made with malicious or mischievous intent towards individuals, 
magistrates, or government : and any publication is indictable as a 
libel which blasphemes God, or brings contempt or ridicule on the 
Christian religion ; or is immoral, corrupt, or obscene ; or calumniates 
the law or government of the country ; or degrades and abuses the 
administration of justice ; or imperils the peace of the country by 
personal abuse of a foreign sovereign or his officers ; or blackens the 
memory of one who is dead, or the reputation of one who is living. 
And if the matter is plainly to be understood as meaning or intended 
to mean any of these things, it is libellous, however it may be ex- 
pressed. Publication means the holding forth to the public in any 
way whatever. The publication must be malicious ; but if the writ- 
ing is on the face of it libellous, the law presumes that it was pub- 
lished from a malicious intention. We have said that the publisher 
of a libel may be punished criminally by indictment. He is also 
subject to an action for damages by the party libelled; and both of 
these remedies may be pursued at the same time. 

SLANDER. 

Injurious words spoken, but not published, constitute slander. 

The offence of slander is not indictable : it is considered as an injury 
only to the person slandered ; and he may recover damages for the 
injury by a proper action. Slanderous words are divided in law 
into two classes. One consists of those words for which damages 
may be recovered, without proving special damage ; and the other, 
of those for which the slandered party can recover damages only by 
proof that he has suffered damage from them. The first class of words, 
which are called words in themselves actionable, are those which, 
first, impute some offence to another for which that other might be 
subjected to legal process as a criminal ; second, those which im- 
pute to him a disease or distemper which makes him dangerous in 
or unfit for society ; third, the want of integrity or capacity in the 
conduct of any profession, business, or trade, or in the discharge of 



A CITIZEN OF THE UNITED STATES. 187 

the duties of any office of profit. The law supposes that every per- 
son slandered in either of these ways must suffer damage from the 
slander, and leaves it to a jury to determine how much that dam- 
age is. 

For injurious words of any other description, affecting his repu- 
tation or standing in society, the slandered person may have his 
action, and will recover such damage as he can prove to the jury 
that he has sustained from the slanderous words. The best author- 
ity holds that the repetition of oral slander which is already in cir- 
culation lays the person who repeats it open to an action. 

TRUTH AS A DEFENCE. 

In all actions of slander, if the defendant prove that the words 

spoken were true, this is a sufficient defence for him, however mean 
and malicious were his motives and his conduct. This is to be re- 
gretted ; it would have been better to apply to actions for slander, 
or unpublished words, the same rule in respect to truth as a defence 
which is applied to actions for libel, or published words. This rule, 
after a good deal of difficulty and conflict in the courts, is now 
established as law all over this country. The words of the rule 
vary in different places ; but it is always substantially this : that 
the truth of the words spoken is a perfect defence, provided that the 
words were spoken from good motives and for justifiable purposes. 



CHAPTER IV. 

FREEDOM OF RELIGIOUS FAITH AND 
PROFESSION. 

The first article of the constitution provides that Congress shall 
make no law respecting an establishment of religion, or prohibiting 
tve free exercise thereof; and in the sixth article it is provided that 
no religious tests shall ever be required for office. These are the only 
provisions in the federal constitution upon this subject. 

It will be observed that these clauses (unlike many of those 
already considered) apply only to laws of the United States : they 
place no restraint whatever on the action of the States, and make 
no provision for protecting the citizens of the respective States in 
their religious liberties, against the laws of the States. 



188 THE PERSONAL RIGHTS OF 

The constitution of some of the States did not folly respond to 

this entire freedom of religion. Religious tests, to a certain extent, 
were retained in the constitutions of New Hampshire, Massachusetts, 
New Jersey, Maryland, Tennessee, Mississippi, and North Caro- 
lina. In this last State, by the constitution of 1776, no person deny- 
ing the divine authority of the Old or New Testaments, or the truth 
of the Protestant religion, could hold a civil office ; but by the consti- 
tution of 1835 the word "Christian" was substituted for the word 
" Protestant." But in all these, as well as the other States, in point of 
practice, the utmost religious freedom may be said to prevail. The 
practical law of the country may now be stated in the words of the 
contract or concession made by William Penn in 1676, with or to 
the planters and proprietors of the province of west New Jersey. 
These words are : " No man on earth has power or authority to rule 
over men's conscience in religious matters ; and no person shall be 
called in question, or punished or hurt in person, estate, or privi- 
lege, for the sake of his opinion, judgment, or worship, in the con- 
cernments of religion." 

In the Ordinance of Congress of 1787, for the government of 
the territory of the United States north-west of the river Ohio, it 
was declared to be a fundamental and unalterable principle in the 
compact between the original States and the people and States in 
that territory, that no person demeaning himself in a peaceable and 
orderly manner should ever be molested on account of his mode 
of worship or religious sentiments. And this may be regarded as 
at this day the practical law of the United States. 



CHAPTER V. 

MILITAKY EIGHTS AND DUTIES. 

The constitution gives power to Congress to provide for calling 

forth the militia to execute the laws of the Union, suppress insur- 
rections, and repel invasions. The constitution makes no provision 
whatever for regulating the militia, but leaves that altogether to 
Congress and to the States. Congress has passed acts authorizing the 
President to call forth the militia in certain exigencies; and it belongs 
exclusively to him to judge whether those exigencies have occurred 
and placed in his hands this authority. His decision on this subject 
is conclusive. The militia, however, is not the militia of the United 



A CITIZEN OF THE UNITED STATES. 189 

States, but of the States respectively ; and when the President calls 
out the militia, he makes his requisitions directly upon the executive 
of the States ; and when the militia of a State is so called into the 
service of the general government, and mustered at the place of 
rendezvous appointed by a national authority, it then, and not be- 
fore, becomes a national militia. 

Although the constitution gives to Congress power to provide 
for organizing, arming, and disciplining the militia, and for governing 
such part of them as may be employed in the service of the United 
States, this power has never been fully exercised. Arms have been 
distributed to the States; but they have been left to organize, disci- 
pline, and arm their militia at their pleasure. The same paragraph 
reserves to the States the appointment of the officers, and the 
authority of training the militia, according to the discipline pre- 
scribed by Congress. " Militia " undoubtedly means the body of 
arms-bearing citizens, as distinguished from the regular army. In 
1863 Congress passed an act declaring that all citizens of the United 
States, <fcc, " are hereby declared to constitute the national forces, 
and shall be liable to perform military duty in the service of the 
United States, when called out by the President for that purpose." 
In New York it has been held that this act was unconstitutional, 
and in Pennsylvania that it was constitutional ; both the decisions 
being by single judges. 

The second article of the amendments to the constitution pro- 
vides that a well-regulated militia being necessary to the security of 
a free State, the right of the people to keep and bear arms shall not 
be infringed. 



CHAPTER VI. 

THE EIGHT AND DUTY OF SUFFEAGE. 

Citizenship and suffrage are often confounded. They are en- 
tirely distinct things, although similar in some respects, and fre- 
quently united, as we shall see in what follows. 

By the constitution Congress has power to establish a uniform 
rule of naturalization ; and laws for that purpose have been made. 
Their effect is to make a person born in foreign countries, and re- 
siding in this country, stand here upon the same footing as one that 
is born here, if he takes the steps pointed out by these laws. This 
subject has already been fully considered 



190 THE PERSONAL RIGHTS OF 

Under the federation which preceded the present constitution, 
the general government could not exercise the power of naturaliza- 
tion, the State alone having that power. But as naturalization 
made a man a citizen, and a citizen of one State was a citizen of 
every other, it followed that any one State, in any way that it 
thought proper, might invest a foreigner with all the privileges of 
citizenship in every other State. The inconvenience of this was so 
obvious, that when the constitution was formed no objection was 
made to giving to the United States the exclusive power of natu- 
ralization. Although the exercise of this power is not expressly 
denied to the States, yet it is now firmly established that this power 
belongs to the United States exclusively. At that time, the peo- 
ple of all the States regarded this country as an asylum for the 
oppressed in Europe, and desired a large immigration, to help in 
developing the resources of the country. It was among the griev- 
ances narrated in the declaration of independence that the King of 
England had endeavored to prevent the population of the colonies, 
by obstructing the laws for the naturalization of foreigners. 

Such laws were early made, and have since been repeatedly 
amended. We gave them in our section on naturalization, as they 
now stand ; and they may be regarded as the result of the best 
wisdom of Congress in making laws which, on the one hand, should 
give all reasonable facility to a foreigner who wishes to become a 
citizen with us, and, on the other hand, should not make this boon 
of citizenship too cheap, and so easy as to become liable to abuse. 
But it must be remembered that citizenship is not suffrage ; and 
that naturalization, of itself, confers no right of suffrage. 

A citizen of the United States must be a citizen of that State or 
territory in which he resides. It is there he must exercise the right 
of suffrage, if he possesses that right. But as citizenship of itself 
gives no right of suffrage, that must depend upon the law of the State 
where he 'resides, the constitution having left to the States this 
power; and each State prescribes its own rule, or has its own law 
of suffrage. Thus, a foreigner coming to Massachusetts, and residing 
there, may be naturalized, and thus become a citizen of the United 
States, and of that State, and live there all his life without the right 
of suffrage, unless he learns how to read the constitution in English, 
and write his own name. 

THE RIGHT OF SUFFRAGE. 

This right we state below as it is given by the constitution of 
each State in the Union, which we enumerate alphabetically. It 
may be previously remarked that many of the constitutions confine 



A CITIZEN OF THE UNITED STATES.' 191 

the right of voting to white male persons. But the fifteenth article 
of amendments to the constitution declares that " the right of citi- 
zens of the United States shall not be denied or abridged by the 
United States, or by any State, on account of race, color, or previous 
condition of servitude." In stating the provisions of the several 
States concerning the right of suffrage, we omit, therefore, the word 
" white." We omit, also, the requirements that the person shill 
be twenty-one years of age, and that he should take a prescribed 
oath to support the constitution and laws of the United States and 
of the State in which he offers his vote; both these requirements 
being common to all the State constitutions. For a similar reason, 
the word "male," generally found in the statutes regulating suffrage, 
is omitted. All the States require residence for a certain time within 
the State or county or township in which they offer to vote ; but 
soldiers and sailors in the service of the United States do not ac- 
quire a residence by being stationed in the State ; and this provision 
is specified in some of the constitutions, but is not mentioned in this 
abstract ; nor is the exception of the insane, lunatics, and paupers, 
which is universal. Persons convicted of infamous crime are ex- 
cepted generally ; and in some States, those who aided in any way 
the recent rebellion. It is sometimes stated expressly that a pardon 
or amnesty would remove these disabilities; and this would no doubt 
be the effect generally. 

Alabama. — Every person has a right to vote who is a citizen 
of the United States, and has resided in the State one year next 
preceding the election, and the last three months thereof in the 
county in which he offers his vote. Persons convicted of treason, 
embezzlement of public funds, malfeasance in office, bribery, or 
crime punishable by imprisonment, lose the right of suffrage. 

Arkansas. — In this State a foreigner may acquire the right 
of suffrage before he becomes a citizen of the United States ; for 
every person has this right, if he were born in the United States, or 
has been naturalized, or has legally declared his intention of becom- 
ing a citizen of the United States. He must also have resided in 
the State six months next preceding the election, and be at the time 
of voting a resident of the county in which he votes. Exceptions 
are made in the case of criminals, as above, in Alabama, and also of 
those who during the rebellion took the oath of allegiance to the 
United States, and afterwards aided in any way the cause of the 
rebellion. 

California. — Every person may vote who is a citizen of the 
United States, or, having been a citizen of Mexico, elected to become 
a citizen of the United States under the treaty of pence of 1848, 



192 THE PERSONAL RIGHTS OF 

and who has resided in the State six months, and in the county or 
district in which he offers his vote thirty days next preceding the 
election. Persons convicted of any infamous crime are excepted. 

Connecticut. — Every person has the right to vote if he be a 
citizen of the United States, and has resided in the State and in 
the town or city in which he offers to vote six months, is of good 
moral character, and is able to read any article of the constitution, 
or any section of the statutes of the State. Persons are excepted 
who are convicted of bribery, forgery, perjury, duelling, fraudulent 
bankruptcy, or other offence for which an infamous punishment is 
inflicted. 

Delaware. — Every person has a right to vote who is a citizen 
of the United States, and has resided one year in the State, 
and the last month of that year in the county in which he offers his 
vote. If he be over twenty-one, and under twenty-two, he may 
vote without having paid any tax ; but if he be over twenty-two, 
he must have paid a county tax within two years before the election 
which was assessed, and six months, at least, before the election at 
which he offers his vote. Felons are excepted, and the legislature 
may make forfeiture of the right of suffrage a punishment for crime. 

Florida. — Every person has the right to vote who is a citizen 
of the United States, or shall have declared his intention to become 
such a citizen, in conformity with the naturalization laws. He must 
have resided in the State one year, and in the county in which he 
proposes to vote six months, next preceding the election at which 
he offers his vote. No person under guardianship, and no person 
convicted of felony, shall be allowed to vote. 

Georgia. — Every person has the right to vote who is a citizen 
of the United States, or who has declared his intention to become a 
citizen of the United States, according to law. He must have resided 
in the State six months next before the election, and in the county 
in which he offers his vote thirty days, and paid all taxes required 
of him for the year next before the election. There is a further 
provision, that if he was a resident of the State at the time of the 
adoption of the constitution he has a right to vote. Those who 
have been convicted of infamous crimes, and persons who engage 
in a duel, or send or accept a challenge, or aid in a duel, are dis- 
qualified. 

Illinois. — Every person has a right to vote who is a citizen of 
the United States, and resided in the State when the constitution 
was adopted, or has resided there one year before offering his vote, 
and in his election district thirty days. The general assembly may 
pass laws excluding persons convicted of infamous crimes. 

Indiana. — Every person has a right to vote who is a citizen 



A CITIZEN OF THE UNITED STATES. 193 

of the United States, and has resided in the State six months, and 
is native born, or if, being foreign born, he has resided in the United 
States one year, and in the State six months, and has legally declared 
his intention to become a citizen of the United States. The general 
assembly may pass laws of exclusion, as in Illinois. 

Iowa. — Every person has a right to vote if he be a citizen of 
the United States, and has resided in the State six months, and in 
the county in which he offers to vote sixty days. Persons convicted 
of infamous crimes are excepted. 

Kansas. — Every person has the right to vote who is a citizen 
of the United States, or, if foreign born, has legally declared his 
intention to become a citizen. He must have resided in the State 
six months, and in the township or ward in which he offers his vote 
thirty days. Those under guardianship, and persons convicted of 
treason or felony, or persons who shall give or accept a challenge 
to fight a duel, or who shall knowingly carry to another person such 
challenge, or shall go out of the State to fight a duel, and those dis- 
honorably discharged from the service of the United States, or guilty 
of defrauding the United States, or any State, or who have borne 
arms against the United States, or aided in the attempted overthrow 
thereof, are excepted. 

Kentucky. — Every person has a right to vote if he be a citi- 
zen of the United States, and has resided two years in the State, 
one year in the county, and sixty days in the precinct in which he 
offers his vote. 

Louisiana. — Every person has the right to vote who is a 
citizen of the United States, who has resided one year next before 
he offers his vote within the State, and the last ten days of that 
year within the parish, except those disfranchised by this constitu- 
tion, and persons under interdiction, and all persons convicted of 
treason, forgery, bribery, perjury, or other crime punishable by im- 
prisonment; also all those persons who held office or took part in 
any way under the organization styled "The Confederate States 
of America," until he acknowledges the rebellion to have been both 
morally and politically wrong, and that he regrets all aid he may 
have given it. 

Maine. — Every person has a right to vote who is a citizen of 
the United States, and who has resided in the State three months 
.before election. Persons under guardianship are excepted. 

Maryland. — Every person has a right to vote who is a citizen 
of the United States, who has resided one year within the State, 
and six months within the district or county in which he offers his 
vote. The exceptions are persons under guardianship, and persons 
convicted of larceny or other infamous crime. 

13 



194 THE PERSONAL RIGHTS OF 

Massachusetts. — Every person may vote who is a citizen of 
the United States, and has resided one year within the State, and 
six months within the city or town in which he offers his vote, and 
has paid a tax within two years, provided he is able to read the 
constitution in the English language, and write his name. No natu- 
ralized citizen can vote, or be chosen to office, unless he has resided 
within the jurisdiction of the United States for two years subsequent 
to his naturalization. The exceptions to the right of voting are 
persons under guardianship. 

Michigan. — Every person has a right to vote who is a citizen 
of the United States, or who has declared his intention of becoming 
a citizen six months next preceding the election, and has resided 
in the State three months, and in the township or ward in which he 
offers to vote ten days, next preceding the election. Any person 
who may be engaged in a duel, either as principal or accessory, loses 
the right of suffrage. 

Minnesota. — Every person has a right to vote who is a citizen 
of the United States, or, being foreign born, has declared his inten- 
tion to become a citizen, and persons of Indian blood, in whole or in 
part, who have become civilized, and are declared capable of exer- 
cising the franchise aright by some District Court in the State only 
they who have resided one year in the United States, and four 
months within the State, and ten days next before the election in 
the district, have the right to vote. No person under guardian- 
ship, or person convicted of treason or felony, shall be allowed to 
vote. 

Mississippi. — Every person has the right to vote who is a citi- 
zen of the United States, and who has resided six months in the 
State, and one month next before the election in the county in 
which the election takes place. Persons disqualified by crime, and 
Indians not taxed, are excepted. 

Missouri. — Every person has a right to vote who is a citizen, 
or has legally declared his intention of becoming a citizen of the 
United States, as much as one year, and not more than five years, 
before he offers his vote, and has resided in the State one year, and 
in the county, city, or town sixty days. After the year 1876 new 
voters must be able to read and write, unless prevented by physical 
disability. Persons are excepted who aided the enemies of the 
United States, foreign or domestic, in any way whatever. 

Nebraska. — Every person has a right to vote who is a citizen of 
the United States, and persons of foreign birth who shall have de- 
clared their intention to become citizens, if they have resided in the 
State, county, precinct, and ward for the time provided by law. 

Nevada. — Every person has a right to vote who is a citizen of 



A CITIZEN OF THE UNITED STATES. 195 

the United States, and shall have resided in the State six months, 
and in the district or county thirty days, next preceding the election. 
But no person who has been convicted of treason or felony in any 
State or Territory of the United States, or who has borne arms 
against the United States after he was eighteen years of age, or 
held any office under the so-called Confederate States, shall be 
allowed to vote. 

New Hampshire. — Every inhabitant of each town in this 
State, and of each unincorporated place whose inhabitants may be 
required to assess taxes upon themselves for the support of govern- 
ment, being a native or naturalized citizen of the United States, 
excepting persons excused from paying taxes at their own request, 
shall have a right to vote in the time or place in which he dwells 
and has his home. 

New Jersey. — Every person has a right to vote who is a 
citizen of the United States, and has resided in the State one year, 
and in the county five months, next before the election, and is at the 
time a resident in the township or ward, and has not been convicted 
of a crime which would incapacitate him from giving testimony in 
court. 

New York. — Every person has a right to vote who has been 
a citizen for ten days, and an inhabitant of the State for one 
year, and a resident of the county four months, and a resident of 
the district thirty days, all next preceding the time of voting, and 
has not made and is not interested in any bet or wager depending 
upon the result of the election, and has not voted at the election, 
and has not been convicted of an infamous crime. 

North Carolina. — Every person has a right to vote who was 
born within the United States, or, if foreign born, has been natural- 
ized, and has resided in the State twelve months, and thirty days in 
the county, next preceding the election. Persons are excepted who 
deny the being of an Almighty God, or have been convicted of an 
infamous crime, or of malfeasance in office. 

Ohio. — Every person has a right to vote who is a citizen of the 
United States, and has resided in the State one year next preceding 
the election. The constitution of the State authorizes the legis- 
lature to prescribe a term of residence in the county, township, or 
ward in which the voter resides. 

Oregon. — Every person has a right to vote who is a citizen of 
the United States, or, if of foreign birth, has declared his intention 
of becoming a citizen, and shall have resided in the United States 
one year, and six months within the State, next preceding the elec- 
tion. The legislature may pass laws excluding those who are con- 
victed of infamous crime. 



196 THE PERSONAL RIGHTS OF 

Pennsylvania. — Every person has a right to vote who has 
been a citizen of the United States for one month, and has resided 
in the State one year, and in the election district where he offers his 
vote two months, next preceding his election ; and if, being twenty- 
two years of age or more, he has paid a State or county tax, assessed 
at feast two months and paid at least one month before the election. 
If challenged for receiving any reward, &c, for his vote, he must 
swear (or affirm) that the charge is untrue. And any one guilty of 
bribery, fraud, or violation of an election law is for ever disqualified 
from holding office, and is deprived of the right of suffrage for four 
years. 

Ehode Island. — Every citizen of the United States who has 
had his residence in the State two years, and in the town or city 
in which he offers to vote six months, next preceding the time of 
voting, whose name was registered in the office of the clerk of the 
town where he resides on or before the last day of December in the 
year next preceding the time of his voting, and has paid within 
the year next preceding his offer to vote a tax to the amount of one 
dollar, including in such tax a tax upon his property in the town in 
which he offers to vote, valued at least at one hundred and thirty- 
four dollars. Persons are excepted who are convicted of bribery or 
any infamous crime. 

South Carolina. — Every person has the right to vote who is 
a citizen of the United States, and has been a resident within the 
State one year, and in the county in which the election takes place 
sixty days, next preceding the election. The exceptions are, that 
no person while kept in any almshouse or asylum, or confined in any 
public prison, shall be allowed to vote or hold office. The legisla- 
ture may pass laws excluding persons convicted of treason, murder, 
or robbing a dwelling. 

Tennessee. — Every person has a right to vote who is a citizen 
of the United States, and a resident of the county in which he offers 
his vote six months next preceding the election. Persons convicted 
of infamous crime are excepted. 

Texas. — Every person has the right to vote who is a citizen of 
the United States, or has legally declared his intention to become a 
citizen, and has resided in the State one year next preceding the 
election, and the last six months within the district or county in 
which he offers to vote. Persons are excepted who have been con- 
victed of felony. 

Vermont. — Every person who is a citizen of the United States, 
and has resided in the State one year next before the election, and 
is of a quiet and peaceable behavior, and a citizen of the United 
States, and takes a prescribed oath to give his vote as he shall judge 
will most conduce to the best good of the State. 



A CITIZEN OF THE UNITED STATES. 197 



Virginia. — Every one has a right to vote who has been a citizen 
of the United States, and a resident of the State twelve months, 
and of the county, city, or town in which he shall offer to vote 
three months, next preceding the election. The exceptions are : 
persons convicted of bribery in any election, embezzlement of public 
funds, treason, or felony; and one who has fought a duel, or sent 
or accepted a challenge, or knowingly conveyed a challenge to fight 
a duel, or aided or assisted in any manner in fighting a duel. 

West Virginia. — Every person has a right to vote who is a 
citizen of the United States, and has resided in the State one year, 
and in the county in which he offers to vote thirty days, next pre- 
ceding the election. But no person who is convicted of bribery in 
any election, embezzlement of public funds, treason, or felony, is 
allowed to vote. No person who, since the first day of June, 1861, 
has given or shall give aid to the rebellion against the United 
States shall be allowed to vote, unless he has volunteered into 
the military or naval service of the United States, and has been 
or shall be honorably discharged therefrom. 

Wisconsin. — Every person has a right to vote who is a citizen 
of the United States, or, if of foreign birth, has declared his intention 
of becoming a citizen, and has resided in the State one year next 
preceding the election. No person under guardianship, or convicted 
of treason or felony, can vote. 



We have here given the laws and rnles of each State concerning 

the right of suffrage ; and what shall we say concerning the exercise 
of this right ? The first thing to be said certainly is, that the im- 
portance of a wise exercise of this right is to be measured by the 
value of the whole prosperity of the country and all its well-being, 
and the preservation of our constitution, with its inestimable ad- 
vantages. 

But more than this ought to be said; for, without being an 
alarmist, it may well be thought that there are symptoms of danger, 
and perhaps a growing danger, in this respect. The sense in which 
the very word "politics" is now regarded is some sign of this. This 
word meant originally, and should mean now, the science of con- 
ducting the public policy of a country with wisdom and justice. 
But does not a certain discreditable meaning now attach to this 
word ? In so much that one who is said to be devoted to politics, 
or an earnest politician, is discredited by this statement. No one 
says so with the intention of praising him, nor would he accept the 
statement as praise. 



198 THE PERSONAL RIGHTS OF 

It is not difficult to see the reason for this. Politics have become 
a trade, and the politician is he who deals in the trade of politics. 
From this circumstance and other causes has come about the present 
condition of things ; namely, that the vast majority of the people 
hold themselves aloof from politics, and, except as they are stirred 
up by party excitement when election day comes, take no interest 
in it. In fact, the merchant, farmer, trader, mechanic, and store- 
keeper, who attends to his own business, keeps out of politics that 
he may do so, and likes to have it understood that he leaves politics 
for those who make it their business. A very large percentage of 
the voters of every State abstain from voting, and a considerable 
proportion of the most respectable men in every State refuse to 
hold office. 

All this is a most wretched mistake. It leaves the political 
business of the country to be done by a very few persons, who are 
certainly not the best adapted to do this business well. 

The possible forms of government are said to be three: a 
monarchy, which is the government of one; a democracy, which is 
the government of many, or of all ; and an oligarchy, which is the 
government of a few. There have been in history several instances 
of a government by an oligarchy. In some of these instances a few 
men have gained possession of political power by violence ; in others 
they have held it by belonging by birth to a caste which claimed 
and held governmental authority. * 

Of all these three forms of government, an oligarchy is certainly 
the worst ; and is there not some danger, at least some possibility, 
of our degenerating into the very worst form of this worst method 
of government? That is to say, of the actual government of this 
country falling into the hands of an oligarchy who have possessed 
themselves of power by mere corruption. 

Let me repeat this statement, for I would not be misunderstood : 
Is there not some danger that the actual control and direction of 
public affairs may fall into the hands of a few men — an oligarchy — 
who gain their power by corrupt means. And this oligarchy by 
corruption will sustain its power, and will recruit its ranks from 
those who begin by being the tools of the oligarchy, and live on 
the crumbs which fell to them during their apprenticeship to corrup- 
tion, until by superiority in audacity, contrivance, and litter want 
of principle, they in their turn get to be leaders. 

I know that this sad picture is not a true representation of 
all parts of our country, and some of my readers may wonder that 
I should have drawn it in such dark colors. But it is even now a 
true portrait of some parts ; and if during the next thirty years, cor- 
ruption should increase and advance as much as it has done in the 



A CITIZEN OF THE UNITED STATES. 199 

last thirty years, would my picture fall far short of a true portrait of 
the whole? 

When we remember the means by which a large proportion 
of those who hold office were put in office ; when we remember 
how customs are established among us, in all parts of the country, 
by which caucuses and primary meetings, that few attend but those 
personally interested, begin the work, and then, by a series of con- 
trivances well adjusted for their purposes, a few who hold the wires 
control elections ; when we remember these things, and with them 
the corruption which has grown enormously within the last few 
years, and now infects or threatens almost every department of 
government, great or small, — and is become so bold that it refuses to 
pay to honesty the poor tribute of hypocrisy, — have we not cause 
for fear? 

This country is by its institutions a representative democracy; 
and however we may be dazzled by our marvellous prosperity, which 
is now the wonder of the world, can we not discern that there is 
some possibility at least that a worm is gnawing at the roots of the 
tree which has grown so high and spread so widely ? 

This country, I have already said, is a representative democracy. 
Our great parties take different names, and will continue to do 
so; but there can never grow up in this country a party which 
avows a purpose of taking the government from the people. But 
any party, call itself what it may, which lends itself, consciously or 
unconsciously, to the schemes of trading politicians, is just so far 
working to take the government from the many and give it to the 
few, who are able successfully to cheat the many. 

If we look around us and compare the present with the past, 
and observe the steps by which the politics of this country have 
come into their present condition, is there not a possibility, what- 
ever party may at one time or another gain the ascendancy, and 
whatever party name or watchword may for a time have power, 
that there is growing through it all an oligarchy which seeks to con- 
found itself with the people, that it may use the people as their tool, 
and to acquire the control of affairs by false pretences, asserting 
vociferously a sympathy with the people, when, in fact, its whole 
aim is to make use of the people without their actual and intelligent 
consent ? As it is not possible to do this by violence, it is, or will 
be, done by fraud and falsehood. 

If there be this danger or possibility, what is the remedy? 
That one which this subject of suffrage leads me at once to suggest, 
is, that every voter in this country should remember that politics is 
his business, — that it is a most important part of his business. Very 
many farmers, merchants, and traders in this country — good, honest 



200 THE PERSONAL RIGHTS OF 

and industrious men — devote themselves to what they consider 
their business, and spare no pains to avoid mistakes which would 
bring on them disaster, and to adopt such courses as promise to make 
them comfortable and successful. How happens it that they forget 
that very much of their comfort and success, even their pecuniary 
success, is involved in the good conduct of government, in the 
adoption of wise measures intended for the good of the whole, in 
the suppression of fraud and the defeat of corruption, and in the 
prevention of those measures which will subserve the interests of a 
few, and are carried out by these few through the men they send 
into office? 

Nothing is more certain than this ; and, at the same time, noth- 
ing is more certain than that the people at large do not seem to recog- 
nize this truth, or at least to act upon it. The enormous resources 
of this country, and its universal industry and thrift, give us, and 
probably for a time will give us, great prosperity, let the govern- 
ment and legislation of the country be conducted as they may. 
But if the whole people would awake to the truth, and see clearly 
how much of their personal success and well-being depends in the 
long run upon the conduct of government; and if every man, not 
* because he is moved by partisan motives, but because of the 
convictions growing out of his study of the condition, prospects, 
and wants of the country, does what in him lies to see that honest 
and capable men are placed in authority, and that neither traders in 
nor gamblers for political power hold the places which better men 
should fill, — how much fewer would be those panics and revulsions 
which now so often bring distress on multitudes! 

How little need there would then be for the uprising of 
classes or sections of the people to cast off burdens imposed upon 
them. Legislation might still be sometimes mistaken, and measures 
adopted which do not promote the common welfare ; but such mis- 
takes would not be frequent ; and the effort to remove them and 
make the law better would not be resisted by a class of politicians 
whose power depended upon corruption and falsehood: for their 
power would have come to an end, because the whole people cannot 
be corrupted, nor, if they will but attend to their true interests, be 
for any length of time blinded and cheated. 



A CITIZEN OF THE UNITED STATES. 201 



CHAPTER VII. 

THE RIGHTS A1STD DUTIES GROWING OUT 
OF THE DOMESTIC RELATIONS. 

SECTION 1. 
PARENT AND CHELD. 

The obligation of the father to maintain the child is, and 
always has been, recognized in all civilized countries in some way 
and in some degree. The infant cannot support himself: he would 
perish if others did not supply him with the means of subsistence ; 
and the only question is, whether the public (that is the State) shall 
do this or his parent. Justice, equally with the best affections of our 
nature, answers that it is the duty of the parent. But upon some 
points it is not entirely settled how far this duty is a legal obliga- 
tion. 

We should say, however, that a consideration of all the 
authorities justifies us in stating as strongly if not universally 
prevailing rules in this country, the following : First, if goods sup- 
plied to an infant are necessaries, the father's authority is presumed, 
and he is therefore liable to pay for them, unless he supplies them 
himself or was ready to supply them; second, when the infant lives 
with the father or under his control, his judgment as to what are 
necessaries will be so far respected that he will be held liable only 
for things furnished to the infant to relieve him from absolute 
want ; third, if the things supplied are strict and absolute neces- 
saries, needful for the child's subsistence, or if the child is living 
away from the parent under circumstances which indicate a deser- 
tion by the parent, or that the child has been expelled from his 
house, or caused to leave it by the wrongful acts of the parents, 
then whosoever supplies the wants of the child, may recover their 
cost or value from the parent ; fourth, if the goods supplied were 
proper and beneficial to the child, but were not strict and absolute 
necessaries, the supplier can recover from the father only by proving 
that he authorized the supply. But slight evidence is held to be 
sufficient to prove such authority, as if they were clothes, and the 
father saw the son wear them, or knew that he had received them, 
and made no objection when he might have done so, he must pay 
for them. 



202 TEE PERSONAL RIGHTS OF 

The word "necessaries" must be interpreted according to the 

circumstances of the case. If the child be of sufficient age and 
strength to earn by proper exertions the whole or a part of his 
subsistence, it will not be deemed " necessary " that such aid should 
be rendered to him as it would be necessary to give to an infant 
incapacitated from contributing to his own support, by tender years 
or by debility of mind or body. We give, as closely connected 
with this subject, the law concerning infants, the law of guardian 
and ward, and the law of apprenticeship. 

INFANTS OR MINORS. 

Generally, all persons may bind themselves by contracts. But 

some are incapacitated. The incapacity may arise from many causes ; 
as from insanity, or from being under guardianship, or from alien- 
age in time of war, or from marriage, or from infancy. 

All persons are infants, in law, until the age of twenty-one. 
But in Vermont, Maryland, Ohio, Maine, Missouri, Texas, and per- 
haps one or two other States, women are considered of full age at 
eighteen, for some purposes. 

The rule of law is, that a person becomes of age at the begin- 
ning of the day before his twenty-first birthday. This rule opposes 
the common notion, and it rests on no very good reason, but on 
ancient authority and constant repetition. The reason assigned is, 
that the law takes no notice of parts of a day. The effect of the 
rule is, that a person born on the 9th of May, in the year 1840, 
becomes of age at the beginning of the 8th of May, 1861, and may 
sign a note, or do any thing, with the full power of a person of age, 
on any hour of that day. 

The contract of an infant (if not for necessaries) is voidable, 
but not void. That is, he may disavow it, and so annul it, either 
before his majority, or within a reasonable time after it. As he may 
avoid it, so he may ratify and confirm it. He may do this by word 
only. But mere acknowledgment that the debt exists is not enough. 
It must be substantially, if not in form, a new promise. In Eng- 
land, and in a few of our States, it is provided by statute that this 
confirmation can only be by a new promise in writing, signed by the 
promisor. This rule seems to be useful, and we think it will be 
more widely adopted. 

It must be a promise by the party, after full age, to pay the 
debt ; or such a recognition of the debt as may fairly be understood 
by the creditor as expressive of the intention to pay it; for this 
would be a promise by implication. There are no particular words 
or phrases which the law requires or favors as a confirmation. No 



A CITIZEN OF THE UNITED STATES. 203 

ratification or confirmation can be used in any action which action 
was brought before the ratification was made. It must also be made 
voluntarily, and with the purpose of assuming a liability from which 
he knows that the law has discharged him. And if it be a condi- 
tional promise, the party who would enforce it must prove the con- 
dition to be fulfilled. Thus, if the plain tiff* relies on a new promise, 
and asserts and proves that the defendant said, after full age, " I 
will pay when I am able," he must also prove that the defendant 
was able to pay when the action was brought. 

If an infant's contract is not avoided, it remains in force. And 
it may be confirmed without words ; and the question sometimes 
occurs, whether confirmation by mere silence, after a person arrives 
at full age, prevents him from avoiding his contract made during his 
infancy. As a general rule, mere silence, or the absence of disaffirm- 
ance, is not a confirmation ; because it is time enough to disaffirm the 
contract when its enforcement is sought. 

But if an infant buys property, any unequivocal act of owner- 
ship after majority — as selling it, for example — is a confirmation 
of the purchase. And, generally, a silent continued possession and 
use of the thing obtained by the contract is evidence of a confirma- 
tion ; therefore, if an infant buys a horse, and gives his note for it, 
and after he is of age the seller puts the note in suit, the buyer may 
return the horse and refuse to pay the note ; but if he keeps the 
horse, this is considered evidence of a confirmation of the note. 
The evidence of confirmation is much stronger if there be a refusal 
to redeliver the thing when it can be redelivered; and is generally 
conclusive when the conduct of the party must either be construed 
as a confirmation, or, if not so construed, must be regarded as fraud- 
ulent or wrongful. Thus, where an infant purchased a potash- 
kettle, and gave his promissory note for the price, it being agreed 
by the parties that he might try the kettle, and return it if it did 
not suit him; and the vendor, after the infant became of age, 
requested him to return the kettle if he did not intend to keep it; 
but he retained and used it a month or two afterwards. The court 
held that this was a sufficient ratification of the contract, and that 
an action might be sustained on the note. 

The great exception to the rule that an infant's contracts are 
voidable, is. when the promise or contract is for necessaries. The 
rule itself is for the benefit and protection of the infant, and the 
same reason causes the exception ; for it cannot be for the benefit 
of the infant or minor that he should be unable to purchase food, 
raiment, and shelter, on a credit, if he has no funds. The same 
reason, however, enlarges this exception, until it covers not only 
strict necessaries, or those without which the infant might perish, or 



204 THE PERSONAL RIGHTS OF 

would certainly be uncomfortable, but all those things which are 
certainly appropriate to his person, station, and means. 

There is no exact dividing line which could make this defi- 
nition precise. But it is settled that mercantile contracts, as of 
partnership, purchase and sale of merchandise, promissory notes and 
bills, are not necessaries, and that all such contracts are voidable by 
the infant. So, if he gives his note even for necessaries, he is not 
bound by it ; but may defend against it on the ground that it was 
for more than their true value; and the jury will be instructed to 
give against him only a verdict for so much as the necessaries were 
worth. 

If he borrows money, to be expended in the purchase of neces- 
saries, and gives his note, the debt, or the note, has been held, at law, 
voidable by the infant. But our courts would now hold an infant 
liable for such a debt ; and it is well settled that an infant is liable 
for money paid at his request for necessaries for him ; and if he 
give a note for necessaries with a surety who pays it, the surety 
may recover against the infant. 

If an infant avoid a contract, he can take no benefit from it ; 
thus, if he contracts to sell, and refuses to deliver, he cannot demand 
the price ; or if he contracts to buy, and refuses the price, he can- 
not demand the thing sold. 

An infant is as liable for torts (by torts or tortious acts the 
law means wrongs, or offences) as an adult ; and, therefore, if he 
fraudulently represented himself as of age, when he was not, and so 
made a contract which he afterwards sought to avoid, this fraud will 
not prevent his avoiding the contract, but for damages caused by 
the fraud itself he is answerable just as an adult would be ; and 
these damages might be measured by the contract. So if he dis- 
affirms a sale, for which he has received the money, he must return 
the money ; because keeping it would be a wrong, or else a confirma- 
tion of the sale. So if after his majority he destroys or puts out of 
his hands a tiling bought while an infant, he cannot now demand 
his money back, as he might have done on tendering the thing 
bought ; for by his disposal of it he has acted as owner, and con- 
firmed the sale. 

In general, if an infant avoids a contract on which he has 
advanced money, and it appears that he has received from the other 
party an adequate consideration for the money so advanced, which 
he cannot or will not restore, he cannot recover back the money 
which he advanced. But if an infant has engaged to labor for a 
certain period, and, after some part of the work is performed, re- 
scinds the contract and ceases to do the work, he can recover for 
the work he has done, as much as that work was worth. 



A CITIZE1S OF THE UNITED STATES. 205 

The contract of an infant is voidable only by him, or by 
those having a right to act for him, and not by the other party. 
The election to avoid or confirm belongs to the infant alone ; and 
his having this right does not affect the obligation of the other 
party. Therefore, one who gives a note to an infant, or makes any 
other mercantile contract with him, must abide by it, unless the 
infant annuls it, which he can do if he chooses to. 

But if the note were given or the contract made by a 
fraud on the part of the infant, the injured party has the same 
right of defending against it on this ground as if the fraudulent 
party were not an infant. And it is a universal rule of law that 
no contract which is tainted with fraud is valid against an innocent 
party ; therefore, a wilfully false representation of the infant that he 
has reached his majority would be a fraud, and would enable the 
party dealing with him to set the contract aside. 

Although in most of our States the law does not require that 
the confirmation or new promise of an adult, of a promise which he 
may avoid because it was made by him when an infant, must be in 
writing, it would always and everywhere be better and safer to have 
this new promise in writing. It should be in substantially this form : 

(10.) 

I, Henry Thompson, having promised Nathan Green, to (here describe the 
promise, whether by a note, or verbally, for goods bought, or the like, briefly, 
but so that there may be no mistake about it), and at the time of making that 
promise I was a minor, within the age of twenty-one years, now, in con- 
sideration of said promise, I do hereby confirm and acknowledge the same, 
and promise a full performance and execution thereof. 

Henry Thompson. 

It would often be easier, if both parties assented, simply to 
give a new note for the amount due. But it might, in some cases, 
be better that the new promise should tell the story of the old 
promise, for which it is given. 

GUARDIAN AND WARD. 

Guardians of all descriptions take the place of parents, and 

are always treated by courts as trustees; and in almost all cases 
they are required to give security for the faithful discharge of 
their duty, unless the guardian be appointed by will, and the tes- 
tator has exercised the power given him by statute, of requiring 
that the guardian shall not be called upon to give bonds. But, 
even in this case, such testamentary provision is wholly personal ; 



206 THE PERSONAL RIGHTS OF 

and if the individual dies, refuses the appointment, or resigns it, or 
is removed from it, and a substitute is appointed by court, this sub- 
stitute must give bonds. 

The guardian is held, in this country, to have only a naked 
authority, not coupled with an interest. His possession of the 
property of his ward is not such as gives him a personal interest, 
being only for the purpose of agency. But for the benefit of his 
ward he has a very general power over it. He manages and dis- 
poses of the personal property at his own discretion, although it is 
safer for him to obtain the authority of the court for any important 
measure. He may lease the real estate, if appointed by will or by 
the court ; he cannot, however, sell the real estate without leave of 
the proper court. Nor should he convert the personal estate into 
real, that is, should not buy real estate, without such leave. 

As trustee, a guardian is held to a strictly honest discharge of 
his duty, and cannot act in relation to the subject of his trust for 
his own personal benefit, in any contract whatever. And if a 
benefit arises thereby, as in the settlement of a debt due from the 
ward, this benefit belongs wholly to the ward. And it has been 
held that if a guardian makes use of his own money to erect build- 
ings on the land of his ward, without having an order of the court 
therefor, he cannot charge the same in account with his ward, or 
recover the amount from the ward. But we doubt whether a rule 
so severe would be applied, unless for special reasons. He must 
neither make nor suffer any waste of the inheritance, and is held 
very strictly to a careful management of all personal property. He 
is responsible not only for any misuse of the ward's money or 
stock, but for letting it lie idle ; and if he does so, without suf- 
ficient cause, he must allow the ward interest, and sometimes com- 
pound interest, in his account. 

To secure the proper execution of his trust, he is not only liable 
to an action by the ward, after the guardianship terminates, but, 
during its existence, the ward may call him to account by his next 
friend, or by a guardian appointed by the court for the action. The 
courts have gone so far as to set aside transactions which took place 
soon after the ward came of age, and which were beneficial only to 
the former guardian, on the presumption that undue influence was 
used, and on the ground of public utility and policy. 

A guardian cannot, by his own contract, bind the person or 
estate of his ward ; but if he promise, on a sufficient consideration, 
to pay the debt of his ward, he is personally bound by his promise, 
although he expressly promises as guardian. And it is a sufficient 
consideration if such promise discharge the debt of the ward. And 
a guardian who thus discharges the debt of his ward may lawfully 



A CITIZEN OF THE UNITED STATES. 207 



indemnify himself out of the ward's estate, or if he be discharged 
from his guardianship, he may have an action against the ward for 
money paid for his use. An action will not lie against a guardian 
on a contract made by the ward, but must be brought against the 
ward, and be defended by the guardian. 

The guardianship is a trust so strictly personal, or attached to 
the individual, that it cannot be transferred from him, either by his 
own assignment or devise, or by inheritance or succession. 

A married woman cannot become a guardian without the con- 
sent of her husband ; but with that she may. A single woman 
who is a guardian generally loses her guardianship by marriage ; 
but she may be reappointed. In some States she loses it on her 
marriage, by statute; in others not. 

APPRENTICES. 

The contract of apprenticeship is generally in writing, and is 

also most frequently by deed (or writing under seal), and is to be 
construed and enforced as to all the parties, by the common prin- 
ciples of the law of contracts. Usually the apprentice, who is him- 
self a minor, and his father or guardian with him, covenant that he 
shall serve his master faithfully during the term. And the master 
covenants that he will teach the apprentice his trade ; but the instru- 
ment is not made invalid by the omission to specify any trade or 
profession as that to be taught. He also covenants to supply him 
with all necessaries, and at the end of the term give him money or 
clothes. Slight informalities would not make the instrument void. 
Even if they are of sufficient magnitude to have this effect, the 
instrument will prescribe and measure the claim of each of the 
parties against the other, if they have lived under this instrument 
as master and servant. But the apprentice's consent will not be 
inferred from his mere signature, but must be expressed. 

In case of sickness the master is bound to provide proper medi- 
cines and attendance. The master cannot transfer his trust, or his 
rights over the apprentice. He has no right to employ the appren- 
tice in menial services not connected with the trade or business 
which he has agreed to teach him. And when he neglects to take 
due charge of. the apprentice, the parent's or guardian's authority 
will revive. 

The sickness of the apprentice, or his inability to learn or to 
serve, without his fault, does not discharge the master from his 
covenants, because he takes this liability on himself. Nor will such 
misconduct as would authorize a master to discharge a common 
servant liberate the master of an apprentice from his liability on 



208 THE PERSONAL RIGHTS OF 

his contract. But if the apprentice deserts from his service, and 
contracts a new relation which disables him from returning lawfully 
to his master, the latter is not bound to receive him again if he 
offers to return. 

Not only a party who seduces an apprentice from his service 
is liable, but where one employs an apprentice without the knowl- 
edge and consent of his master, the employer is liable to the master 
for the services of the apprentice, although he did not know the 
fact of the apprenticeship. It may be added, that if an action be 
brought for harboring an apprentice against the will or without the 
consent of his master, the plaintiff is bound to prove that the defend- 
ant had a knowledge of the apprenticeship. But a defendant who 
did not know the apprenticeship when he hired or received the 
apprentice, and who, being informed thereof, continued to retain and 
harbor him, thereby makes himself liable. 

(11.) 

A GENERAL INDENTURE OF APPRENTICESHIP, AS SOMETIMES 
USED IN NEW ENGLAND. 

This indenture, made the day of by and 

between A. B. of and C. D. his son, of the age of 

years, of the one part, and E. F. of of the other part, witnesseth, 

that the said C. D. by and with the consent of the said A. B. (testified by 
his signing and sealing these presents) hath bound out himself as an 
apprentice, to of 

To be taught in the said trade, science, or occupation of a 
which the said R. J. now uses, and to live with, continue, and serve him 
as an apprentice from the day of the date hereof (or from the 
day of next coming) unto the full end and term of seven years 

from thence next ensuing and fully to be complete and ended. During all 
which said term of seven years, the said A. B. doth covenant and promise 
to and with the said R. J., that he, the said C. D., shall and will well and 
faithfully serve and demean himself, and be just and true to him, the said 
R. J. , as his master, and keep his secrets, and everywhere willingly obey 
all his lawful commands; that he shall do no hurt or damage to his said 
master in his goods, estate, or otherwise, nor willingly suffer any to be done 
by others, and whether prevented or not, shall forthwith give notice thereof 
to his said master; that he shall not embezzle or waste the goods of his 
said master, nor lend them without his consent to any person or persons 
whatsoever; that he shall not traffic, or buy and sell, with his own goods, 
or the goods of others, during the said term, without his master's leave; 
that he shall not play at cards, dice, or any other unlawful games, whereby 
his said master may sustain any loss or damage, without his consent; that 
he shall not haunt or frequent playhouses, taverns, or alehouses, except it 
be about his master's business there to be done; and that he shall not at 
any time, by day or night, depart or absent himself from the service of 



A CITIZEN OF THE UNITED STATES. 209 

his said master without his leave; but in all things, as a good and faithful 
apprentice, shall and will demean and behave himself to his said master, 
and all his, during the said term. And for and in consideration of the 
sum of to him in hand paid, &c, the receipt, &c, the said R. J. 

doth covenant, promise, and agree to teach and instruct his said apprentice, 
or otherwise cause him to be well and sufficiently taught and instructed, 
in the said trade of a after the best way and manner that he 

can; and shall and will also find and allow unto his said apprentice meat, 
drink, washing, lodging, and apparel, both linen and woollen, and all other 
necessaries, in sickness and in health, meet and convenient for such an 
apprentice, during the term aforesaid; and, at the expiration of the said 
term, shall and will give to his said apprentice (over and above his then 
clothing) one new suit of apparel, viz., coat, waistcoat, and breeches, hat, 
shoes and stockings, and linen, fit and suitable for such an apprentice. 

In witness whereof, The said parties have interchangeably set their 
hands and seals hereunto. Dated the day of in the 

year of our Lord one thousand eight hundred and 

(Signatures.) (Seals.) 
( Witnesses.) 

(12.) 

SHORTER INDENTURE OF APPRENTICESHIP. 

This indenture witnesseth, That by and with the consent 

of hath put himself, and by these presents doth voluntarily, and 

of his own free will and accord, put himself apprentice to to 

learn the art, trade, and mystery of and after the manner of 

an apprentice to serve the said for and during, and to the full 

end and term of next ensuing. During all which time the said 

apprentice doth covenant and promise that he will serve his master faith- 
fully, keep his secrets, and obey his lawful commands; that he will do him 
no damage himself, nor see it done by others, without giving him notice 
thereof; that he will not waste his goods, nor lend them unlawfully; that 
he will not contract matrimony within the said term; that he will not play 
at cards, dice, or any other unlawful game, whereby his master may be 
injured; that he will neither buy nor sell, with his own goods or the goods 
of others, without license from his master; and that he will not absent 
himself day nor night from his master's service without his leave; nor 
haunt alehouses, taverns, or playhouses; but in all things behave himself 
as a faithful apprentice ought to do during the said term. And the said 
master on his part doth covenant and promise that he will use the utmost 
of his endeavors to teach, or cause to be taught or instructed, the said 
apprentice in the art, trade, or mystery of and will procure and 

provide for him sufficient meat, drink, clothing, lodging, and washing, 
fitting for an apprentice, during the said term, and will give him 
quarters schooling during said term. 

And for the true performance of all and singular the covenants and 
agreements aforesaid, the said parties bind themselves, each unto the other, 
firmly by these presents. 

14 



210 THE PERSONAL RIGHTS OF 

In witness whereof, The said parties hare interchangeably set their 
hands and seals hereunto. Dated the day of in the 

year of our Lord one thousand eight hundred and 

Executed and delivered before 

(Signatures.) (Seals.) 
(Witnesses.) 

SECTION II. 
HUSBAND AND WIFE. 

By the original common law of this country, a married woman 

was wholly incapable of entering into mercantile contracts on her 
own account. By the fact of marriage, her husband became pos- 
sessed of all her real estate during her life ; and if a living child 
was born of the marriage, he had her real estate during his own 
life, if he survived her. This life-right in her real estate is called, in 
law, his tenancy by the curtesy. This life-right remains in force in 
most of the States. 

All the personal property which she has in actual possession 
becomes by common law absolutely his, as entirely as if she had 
made a transfer of it to him. But by property in possession 
the law means only her goods and chattels, or things which can 
be handled, and which actually are in her hands, or under her direct 
and immediate control. If she have notes of hand, money due her, 
or shares in various stocks, these are not considered as things in 
possession, but as things in action. 

"Things in possession" are those things which one has now in 
his hands, and "things in action" (called in law choses in action), 
those which are so called because he who owns them cannot get pos- 
session of them without an action, if other persons choose to resist 
him. All debts, and evidences of debt, as bonds, notes, and all 
shares in stocks, whether national or State, or of incorporated com- 
panies or other companies, are things in action. But bank-bills are 
usually regarded as money, and therefore as things in possession. 
The common law makes a wide difference between things in posses- 
sion and things in action in many respects. 

The common law of husband and wife as to things in action is 
this : the husband may, if he pleases, reduce them to his possession, 
and so make them absolutely his own. In general, he does this by 
any act which is distinctly an act of ownership ; as if he demands 
and collects the debts due to her, or indorses her notes — which he 
can do in his own name — and sells them, or has the stock trans- 
ferred to his own name, or, in general, makes any final and effectual 
disposition of these things in action ; then they have become abso- 
lutely his own. 



A CITIZEN OF THE UNITED STATES. 211 

If, however, he does not reduce them to possession, and dies, 
and she survives him, her whole right and property in them revive 
at his death, without any interest whatever in his representatives. 
And even if he disposes of them by will, this is ineffectual, unless 
he had reduced them into his possession while he lived. 

If, however, he survives her, he will be made, if he wishes it, 
her administrator, and then can collect all her things in action, and 
hold them or their proceeds as his own. And if she dies, and then 
he dies before he has collected these things in action, administra- 
tion on his wife's effects will be granted to his next of kin, and not 
to hers ; and when collected, they will belong to his estate. 

On the other hand, the husband is liable, by the common law, 
with her, for all the debts for which his wife was liable when he 
married her. This is true whether they were then payable or did 
not mature until after the marriage ; and whether he received any 
thing with her or not. If he does not pay them, and dies before 
the creditor has obtained a judgment against him, his estate is not 
liable, even if he had a fortune with her, and that fortune goes to 
his heirs or his creditors, and her creditors get nothing. So it is if 
the wife dies before the creditor recovers a judgment against the 
husband, and the husband then retains all her fortune. But her 
responsibility revives at his death, and she is liable as before mar- 
riage, even if she carried him a fortune, and all her fortune went, as 
above stated, to his representatives. But if she dies, leaving things 
in action not reduced by the husband to possession, and he reduces 
them to his possession as her administrator, he must apply them to 
the payment of her debts, and can hold for himself only what is 
left after such payment. 

Such, we have said, is the common law of England and of this 
country. We have stated it because it is the origin and common 
foundation of the law everywhere. But it is not just or right ; and 
there are few, perhaps none of our States, in which it remains 
unqualified by statutory provisions. But these provisions are very 
various, and in some of the States they change with almost every 
year. 

In nearly all the States a married woman conveys her own 
real estate, and releases dower by joining in a deed with her hus- 
band ; but she is not generally bound by covenants therein, and, in 
many, must be separately examined. In most, she has a certain 
time after removal of the disability of coverture (marriage) to 
assert her different rights, which, if she does not assert them within 
that time will be barred. (See chapter on Statutes of Limitation.) 
Generally, devises or conveyances to husband and wife create a joint 
tenancy, unless the terms of the devise or conveyance are expressH 



212 THE PERSONAL RIGHTS OF 

otherwise. And upon the marriage of a woman who is plaintiff 
or defendant, the suit does not abate, but the husband may be 
admitted to prosecute or defend with her. 

I give here an abstract of the law of husband and wife, as it 
stands on the statutes of the several States. This abstract in- 
cludes the homestead provisions. It should be added, however, 
that the law on these topics can hardly be considered as settled, 
and changes are frequently made. 

ALABAMA. 

In this State, the wife's separate estate is alone liable for her antenuptial 
debts, and the husband is not liable. Rev. Code, 1867, § 2370. All her 
property held before, or acquired after, marriage is secured to her separate 
use. Id. § 2372. The husband is her trustee, but not liable to account for 
the profits. Id. § 2372. She need not be of full age to release dower. 
Id. § 1628. The proceeds of a sale of her property are her separate estate, 
which the husband may use as most beneficial for her. They cannot con- 
tract with each other for the sale of any property. Id. § 2374. He may 
receive property coming to her. Her estate is liable for necessaries for the 
family. If a suit therefor is brought against a husband, and execution is 
not satisfied, her separate estate may be sold by order of court. She may 
dispose of her property by will. Id. §§ 2376-2378. If the husband is 
unfit to manage her estate (or his estate, or abandons her, or has no prop- 
erty exempt from execution), she may be vested with the powers of a feme 
sole. Id. § 2384. $1,200 worth of real estate, including the homestead, 
and $1,000 worth of personal estate, are exempted from execution. Id. 
§ 2881. 

ARKANSAS. 

In this State, a feme covert may be seised in her own right of any prop- 
erty not coming from her husband. Dig. of Ark. Stat. 1858, c. Ill, § 1; 
Id. c. 68, § 25. The homestead of one hundred and sixty acres of land, 
or a town or city lot, of the husband while living, and while occupied by 
widow or child of deceased husband, and certain specified personal prop 
erty, are exempt from execution. Id. c. 68, §§ 29, 30. A married woman 
cannot be executrix. Id. c. 4, § 4. Her real and personal property are 
her sole property, and are not liable for her husband's debts, but may be 
controlled by her, and she may sue and be sued on account thereof as if 
unmarried. The private property of no married woman is exempt from 
the payment of debts contracted by her husband previously to the filing of 
a schedule of such separate property in the office of the recorder of the 
county where she lives. Statutes of 1873, c. 126. 

CALIFORNIA. 

In this State, all property owned before marriage, or subsequently 
acquired by gift, bequest, devise, or descent, by either party, is the sepa- 



a CITIZEN OF THE UNITED STATE is. 213 

rate property of each : but all otherwise acquired by either after marriage 
is common property. An inventory of the wife's separate property, 
acknowledged or proved, as for a conveyance of land, must be recorded; 
and this shall be notice of the wife's title; and her property included 
therein is exempt from seizure on execution for the debts of her husband. 
He has the management and control of her separate property during mar- 
riage; but no alienation can be made, nor lien nor encumbrance created, 
unless she joins in the deed, and acknowledges upon a separate examina- 
tion. But when she sells her separate property for his benefit, or he uses 
the proceeds with her written consent, it is deemed a gift; and neither she 
nor those claiming under her can recover. In certain cases, a trustee may 
be appointed to manage her property. The husband has the entire control 
and management of the common property, with like absolute power of 
disposition as of his own separate property; and the rents and profits of 
the separate property of both are deemed common property, unless with 
respect to the wife, the terms of the bequest, devise, or gift, are other- 
wise. Dower and curtesy are abolished. Upon the death of either party, 
one-half the common property goes to the survivor, and the other half to 
the descendants of the deceased, subject to the payment of his or her 
debts; if there are no descendants, the whole to the survivor, subject to 
such payment. Upon divorce, the common property is equally divided. 
The separate property of the wife is alone liable for her antenuptial debts. 
But the parties may control these provisions by marriage contract, which 
must be in writing, and recorded, or otherwise shall not affect third par- 
ties. It may be entered into by a minor, but cannot alter the legal order 
of descent, nor derogate from the husband's rights over the persons of his 
wife and children as head of the family, or the survivor's rights as guar- 
dian of the children. Compiled Laws of Cal. 1850-53, c. 147, p. 812. 
When a married woman is party to a suit, her husband is to be joined : 
except, if the action concerns her separate property, she may sue alone? 
and, if between herself and her husband, she may sue and be sued alone. 
If both are sued together, she may defend in her own right. Id. c. 123, 
§§7,8, p. 520. There is also a homestead law, exempting the homestead 
to the amount of $5,000 from final process of court; and it cannot be 
alienated without the wife joins in the conveyance, and acknowledges 
apart from her husband. Its other provisions are substantially similar to 
those before referred to. Id. c. 158, p. 850. The wife's real estate may 
be conveyed by separate deed, if her husband has been absent one year. 
Laws of 1855, c. 17. By complying with certain requirements, she may 
carry on, in her own name, any business, trade, profession, or art; and 
the property, &c, invested belongs exclusively to her; and she has all the 
legal privileges and disabilities of debtor and creditor, and becomes re- 
sponsible for the maintenance of her children. Her husband is not liable 
for her debts thus contracted without special written promise; and she 
shall not originally invest more than $5,000, without taking oath that the 
amount above that sum did not proceed from him. Id. c. 178-, p. 881. 
She may cause the life of her husband to be insured for her benefit. Pub- 
lic Laws of 1854, c. 40. The personal property of the wife can be sold oi 
transferred only when husband and wife join in the sale or transfer, except- 



214 THE PERSONAL RIGHTS OF 

ing only what she holds as a feme sole. Laws of 1862, c. 391. She may 
dispose of her separate property by will, in like manner as any other per- 
son. Laws of 1866, c. 285. Her earnings are her separate property. * If' 
she lives separate from her husband, she may convey land by deed without 
his joining in the deed. Laws of 1870, c. 172. 

CONNECTICUT. 

In this State, all real estate conveyed to a married woman, in consid- 
eration of property acquired by her personal services during coverture, 
is hers alone; and the avails of all sales of the real estate of a married 
woman, if invested in her name, or in the name of a trustee for her, belong 
to her. When any man abandons his wife for a continuous period of three 
years, she may petition the Superior Court, as a court of equity, in any 
county where she owns real estate, and such court shall p'ass a decree em- 
powering her to execute all conveyances necessary to dispose of such real 
estate, as if she were a feme sole. All the personal property of any woman, 
married since the 22d of June, 1819, and all the personal property acquired 
thereafter by a married woman, shall vest in the husband in trust, to have 
the income thereof during his life, subject to the duty of expending there- 
from so much as may be necessary for the support of his wife during her 
life, and of her children during their minority, and to apply such part of 
the principal thereof as may be necessary for the support of the wife, or 
otherwise with her written assent; and upon his decease the remainder of 
such trust property shall be transferred to the wife, if living, otherwise as 
she may by will have directed, or in default of such will to those entitled by 
law to succeed to her intestate estate ; but if the husband shall have paid 
liabilities incurred by her before marriage, a proper court of equity may, 
vest absolutely in him such portion of said property as may be equivalent 
in value to the amount of such liabilities so paid. No sale or transfer of 
any interest in such estate shall be valid unless the wife, or if she be dead 
those in whom her estate shall have vested, or the guardians of such as are 
minors, shall join in a written conveyance thereof; and all reinvestments 
shall be in the name of the husband as trustee. The Court of Probate of 
the district in which such trustee resides, shall, upon the petition of the 
wife, or of any person interested in such estate, call such trustee to account, 
and may require him to give a bond to the State for the performance of his 
trust and the security of such estate, and may remove him when he shall be- 
come incapable, or shall neglect to perform his duties, and appoint another 
trustee; and a removal for the neglect to apply the income thereof to the 
support of the wife and her children, shall divest him of all interest in her 
estate. When any man shall abandon his wife he shall be deemed to have 
abandoned his right to the custody and control of her property, and the 
rents and income thereof ; and such property shall thereupon vest immedi- 
ately in her and be her sole estate, and she may, while so abandoned, sue 
and be sued, and transact business in her own name as if a feme sole. Any 
policy of life insurance for the benefit of a married woman, shall inure to 
her separate use, or, in case of her decease before payment, to the use of 
her children or her husband's children, as may be provided in such policy, 



A CITIZEN OF THE UNITED STATES. 215 

if the amount of premium on such policy shall not exceed three hundred 
dollars; if more, the excess does not go to her. Payment to a married 
woman for money lent, or for her personal services during coverture, shall 
be as valid as if she were a, feme sole. General Statutes, Revision of 1875. 
pp. 186, 187. 

DELAWARE. 

In this State, the widow of one who made his will before marriage 
takes the same share as if he died intestate. R. S. c. 84, § 23. Insurance 
on life for her benefit is secured to her, if the premium do not exceed $150. 
Id. c. 76, § 3. If her husband abandon her, the court may provide for the 
support of herself and her children out of his property. Id. c. 48, § 15. 
She cannot make a power of attorney. Id. c. 83, § VS. Real estate, mort- 
gages, stocks, and silver plate belonging to her at marriage, or acquired 
during coverture, are not subject to his disposition, or liable for his debts, 
except judgments recovered against him for her liabilities before marriage; 
but she may not dispose of such property nor create any encumbrance on 
her real estate, nor dispose of the rents thereof, nor of the interest of her 
stock and mortgages, without his consent in writing under seal. This 
provision does not affect him as tenant by curtesy; but with his consent, 
as aforesaid, the proceeds of such sale as above authorized may be in- 
vested in her own name as her sole property, subject to the laws governing 
the principal. Laws of Delaware, 1865, c. 572, §§1,2, 3. 

FLORIDA. 

In this State, the husband or wife administers in preference to others. 
Thompson, Dig. 2 Div. tit. 3, c. 2, § 1, Tf 5. Their rights, by marriage, 
under the Spanish law when in force, are preserved. Id. 2 Div. tit. 3, c. 1, 
§ 4; 2 Div. tit. 3, c. 1, § 2, ^[ 1. The wife retains, independent of her hus- 
band, and is not liable for his debts (if inventoried and recorded; but failure 
to record confers no right upon Mm: id. 2 Div. tit. 5, c. 1, § 2, ^[ 8), all 
property owned before or obtained after marriage; but he has the man- 
agement of it. She cannot sue him for rent, nor can he sue her for man- 
agement. Her property alone is liable for her antenuptial debts; and, upon 
her death, he takes the same interest in her property as a child; but, if she 
leaves no child, the whole. Id. 2 Div. tit. 5, c. 1 , § 2. A homestead of 
forty acres, if ten of it be cultivated, is exempted from execution. Id. 3 
Div. tit. 5, c. 8, § 3; Laws of Florida, 1869. " Every person of the age 
of twenty-one years," of sound mind, may make a will. Id. 2 Div. tit. 3, 
c. 1, § 1, *ff 1. Certain provisions of the criminal code are extended to 
married women. Laws, 1868, c. 4, § 6. 

GEORGIA. 

In this State, marriage settlements, if not recorded within three months 
after execution, are invalid as to bona fide purchasers, creditors, or sureties 
without actual notice, becoming so before actual recording. 'Code, ed. of 



216 THE PERSONAL RIGHTS OF 

1867, p. 354 The husband takes administration, and is sole heir of his 
deceased intestate wife. Id. p. 351. On the death of the husband without 
issue, the wife is the sole heir. Id. p. 351. The wife of an idiot or lunatic 
is generally entitled to the guardianship. Id. p. 370. If deserted, her 
earnings vest in herself. Id. p. 351. By an act, approved February 28, 
1856, Laws of 1855-56, tit. 19, No. 176, p. 229, a husband married there- 
after is not liable for his wife's debts, further than the property received 
through her will satisfy; and such property is not liable for his debts exist- 
ing at the time of the marriage. A married woman may deposit in any 
savings institution any sum not more than $2,000, the earnings of herself 
or children, as her own separate property, as if she were unmarried. Laws 
of Georgia, 1865-66, tit. 26, §§1,2. All her property, whether belonging 
to her at marriage, or acquired during coverture, vests in her, and is not 
liable for any debt, default, or contract of her husband. Id. p. 350. . 

ILLINOIS. 

In this State, there is a homestead law, similar in its purposes to those 
before mentioned, exempting the homestead to the value of $1,000. It 
continues after the death of the householder, for the benefit of the widow 
and family, if one of them occupies the same, until the youngest child is 
twenty-one years of age, and the death of the widow. Gross, Statutes, 
1869, p. 327. An act was passed in March, 1874, entitled, "An act to 
revise the law in relation to husband and wife. " It provides, substantially, 
as follows: A married woman may, in all cases, sue and be sued without 
joining her husband with her, to the same extent as if she were unmarried. 
If husband and wife are sued together, the wife may defend for her own 
right; and if either neglect to defend, the other may defend for such one 
also. When the husband has deserted his family, the wife may prosecute 
or defend, in his name, any action which he might have prosecuted or 
defended; and the same right shall apply to the husband upon the desertion 
of the wife. For all civil injuries committed by a married woman, dam- 
ages may be recovered from her alone; and her husband shall not be respon- 
sible therefor, except in cases where he would be jointly responsible with 
her, if the marriage did not exist. Neither husband nor wife shall be liable 
for the debts or liabilities of the other incurred before marriage; nor be 
liable for the separate debts of each other; nor shall the wages, earnings, 
or property of either, nor the rent or income of such property, be liable 
for the separate debts of the other. Contracts may be maOe and liabilities 
incurred by a wife, and the same enforced against her, tc the same extent 
and in the same manner as if she were unmarried; but, except with the 
consent of her husband, she may not enter into or carry on any partnership 
business, unless her husband has abandoned or deserted her, or is idiotic 
or insane, or is confined in the penitentiary. A married woman may 
receive, use, and possess her own earnings, and sue for the same in her 
own name, free from the interference of her husband or his creditors. 
Neither husband nor wife shall be entitled to recover any compensation for 
any labor performed or services rendered for the other, whether in the 
management of property or otherwise. A married woman may own, in hei 



A CITIZEN OF THE UNITED STATES. 217 



own right, real and personal property obtained by descent, gift, or pur- 
chase, and manage, sell, and convey the same to the same extent and in 
the same manner that the husband can property belonging to him. In 
case the husband or wife abandons the other and leaves the State, and is 
absent therefrom for one year, without providing for the maintenance and 
support of his or her family, or is imprisoned in the penitentiary, any court 
of record in the county where the husband or wife so abandoned or not 
confined -resides, may, on application by petition, setting forth fully the 
facts, if the court is satisfied of the necessity by the evidence, authorize 
him or her to manage, control, sell, and incumber the property of the other, 
as shall be necessary, in the judgment of the court, for the support and 
maintenance of the family, and for the purpose of paying debts of the 
other, or debts contracted for the support of the family. A husband or 
wife may constitute the other his or her attorney in fact, to control and 
dispose of his or her property for their mutual benefit or otherwise, and 
may revoke the same to the same extent and in the same manner as other 
persons. The expenses of the family and of the education of the children 
bhall be chargeable upon the property of both husband and wife, or of 
either of them, in favor of creditors therefor, and in relation thereto they 
may be sued jointly or separately. Neither the husband nor wife can 
remove the other or their children from their homestead without the con- 
sent of the other, unless the owner of the property shall, in good faith, 
provide another homestead suitable to the condition in life of the family; 
and if he abandons her, she is entitled to the custody of their minor chil- 
dren, unless a court of competent jurisdiction, upon application for that 
purpose, shall otherwise direct. When the husband or wife is insane, and 
therefore incapable of executing a deed or mortgage, and conveying his or 
her right to curtesy, dower, or homestead in the real property of the other, 
the same person may present his or her petition to any court having general 
chancery jurisdiction over the real estate to be affected, setting forth the 
facts, and praying for an order authorizing the applicant, or some other 
person, to execute a deed of conveyance or mortgage for such insane person, 
and thereby relinquish his or her right of curtesy, dower, or homestead in 
said real estate. In granting the petition there must be due protection of 
the rights and property of the insane husband or wife, and of those who 
deal with him or her. By another act, tenancy by the curtesy is abolished, 
and husband and wife are put on the same footing as to dower. 

INDIANA. 

In this State, the husband is liable for her antenuptial debts only to the 
extent of the personal property he received with her, or from the sale or 
rent of her lands. Gavin & Hord's Statutes of Indiana, 1862, vol. i. 
p. 373. And such liability is not extinguished by her death. Id. § 2. 
Her Christian name is sufficient in a suit against them jointly. Cox v. 
Runnion, 5 Blackf. 176. Her admissions subsequent to marriage are not 
admissible in a suit against them jointly for a debt of hers while single. 
Brown v. Lasselle, 6 Blackf. 157; Lasselle v. Brown, 8 id. 221. Process 
need only be served on the husband when subsequent proceedings are 
against both. Campbell v. Baldwin, 6 id. 364 ; King v. McCampbell, id. 



218 THE PERSONAL RIGHTS OF 

135. The husband is a proper party to a scire facias, on a judge's trans- 
cript of judgment against the wife while single. Campbell v. Baldwin, 
supra. The plaintiff must prove marriage in assumpsit against both on a 
note of wife before marriage, when non-assumpsit is pleaded. Wallace v. 
Jones, 7 id. 321. They should sue separately in an action for libel upon 
both. Hart v. Crow, id. 351. As to the wife's agency, see Casteel v. 
Casteel, 8 id, 240. Judgment against them jointly for tort of wife must 
be satisfied first from her lands, if she have any. Id. p. 374. Her lands 
are not liable for her husband's debts, but remain her separate property; 
but she cannot encumber or convey them except by deed, in which her 
husband must join. Id. p. 374. Barnett v. Goings, 8 Blackf. 284. Suits 
relative thereto should be in the name of both; if separated, in her name, 
in which case the husband is not liable for costs. Id. p. 375. The wife 
cannot sue, or defend by guardian or next friend, unless under twenty-one. 
Id. p. 371. There are special provisions as to powers of -a wife, if aban- 
doned by her husband. Id. p. 375. If a husband die, testate or intestate, 
one-third of his real estate goes to his wife in fee-simple, free from all 
demands of creditors; but if the real estate exceeds in value $10,000, she 
takes, as against creditors, only one-fourth; and if it exceeds $20,000, only 
one-fifth. Id. p. 294. If she die, one-third of her real estate goes to him. 
Id. 295. If a husband or wife die intestate and without a child, the whole 
estate goes to the survivor. Id. p. 290. $300 in value of real or personal 
property, or both, at the election of the debtor, is exempt from execution. 
Id. ; Gavin & Hord's Statutes, vol. ii. p. 363. 

IOWA. 

In this State, a married woman owns in her own right all property 
real or personal which came to her by descent, gift, or purchase, and may 
dispose of the same without the interference of her husband. Neither 
the husband nor the wife is liable for the debts or contracts of the other, 
made or incurred before marriage or after. For all civil injuries by the 
wife, damages may be recovered from her alone. In case of abandon- 
ment of either by the other, the party abandoned may petition the court, 
who may, on sufficient proof of the facts, authorize the petitioner to 
manage or encumber the property of the abandoning party for the sup- 
port of the family. Each may constitute the other his or her attorney 
in fact. She may sue for and recover wages for her personal services, 
and hold what she recovers as her own property. She may make con- 
tracts and incur liabilities in the same manner as if unmarried. Code of 
1873, pp. 397, 398. The husband is not liable upon contracts relative to 
his wife's separate property or purporting to bind herself alone, nor is 
the property or income of either liable for the debts of the other. Family 
expenses, education of children, &c, are chargeable upon the property of 
both or either; they may be sued jointly, or the husband separately. 
The husband cannot remove the wife or children from the homestead 
without their consent. The estate by the curtesy is abolished, and the 
husband is entitled to the same rights of dower as the wife. Rev. St. 



A CITIZEN OF THE UNITED STATES. 219 

1860, pp. 420, 427. When judgment is against husband and wife, execution 
may issue against the property of either or both. Id. p. 600. If both are 
sued jointly, the wife may defend for her own right, or for her husband's 
right also. Id. p. 491. A married woman may receive gifts or grants 
from her husband without the intervention of a trustee. Id. p. 388. 
There is also a homestead exemption law, to the extent of a town plat 
of half an acre ; or, if not within a town, of forty acres, or enough more 
to make a value of $500. Id. p. 403. 



KANSAS. 

In this State, the property, real or personal, of a married woman, 
owned at the time of her marriage or subsequently received, is her sole 
and separate property, not subject to the disposal of her husband, nor 
liable for his debts. Gen. St. 1868, p. 562. She may sell and convey, 
or enter into any contract relating thereunto, and may sue and be sued 
as if sole. Id. p. 563. She cannot bequeath more than half of her property 
away from her husband, without his written consent. Id. p. 1113. If 
either die intestate and without issue, all his or her property goes to the 
survivor. Id. pp. 394, 395. If a husband deprives his wife by will of 
more than half his property, she may elect to accept the conditions of his 
will, or take half of his property. Id. p. 1113. Dower and curtesy are 
abolished. Id. A homestead of one hundred and sixty acres of land, 
or one acre in a city, town, or village, is exempted from sale by execution. 
Id. p. 473. 

KENTUCKY. 

In this State, the husband has no interest in the real estate or chattels 
of the wife, except the use of them, with power to let out to rent real 
estate for three years at a time. R. S. of Kentucky, c. 47, art. 2, § 1 
Such estate is only liable for her antenuptial debts, and for necessaries for 
the family, the husband included. Id. Her chattels real may be conveyed 
in the same way as land, and the proceeds go to the husband, unless other- 
wise provided. Id. § 2. He is not liable for her antenuptial debts except 
to the amount received by her independent of real estate or slaves. Id. § 3. 
Provision exists for a married woman's acting as feme sole in case of 
abandonment, imprisonment of husband, &c. Id. § 4. The wife of a non- 
resident husband may act as a feme sole. Id. § 8. An alien wife of a citi- 
zen husband may inherit property, c. 15, art. 3, § 3. The deeds of a feme 
cavert may be either joint or separate, c. 24, § 21; and must be separately 
acknowledged. Id. § 22. For various provisions relating to dower, see 
c. 30. Marriage agreements must be recorded, c. 24, § 9. The husband's 
remedy against the wife's tenant is the same after her death as before, 
c. 56, art. 2, § 25. She has the general rights of an unmarried woman in 
regard to stock held for her exclusive use. Id. § 16. Real or personal 
estate conveyed or devised to her, except as a gift, cannot be aliened with- 
out the consent of her husband. Id. § 17. Provision exists for the sale of 
married women's property, c. 86, art. 1, 5, 6. A married woman may dis- 



220 THE PERSONAL RIGHTS OF 

pose of her separate property by will, or execute a power, c. 106, § 4. 
Wills are revoked by a subsequent marriage, except when made under 
power of appointment, when the estate would not, in default of such appoint- 
ment, go to the heirs. Id. § 9. She may deposit in bank and check as if 
sole ; but rights of third parties are not affected if bank has notice. Sup- 
plement 1866, p. 727. When there is no appearance of fraud, on joint ap- 
plication of husband and wife, the court may empower her to use, sell, and 
convey, for her own benefit, any property she may own or acquire; and to 
trade in her own name as a feme sole, and dispose of her property by deed 
or by will ; and in all cases it is free from the debts of her husband and 
liable for her own. Id. p. 728. 

LOUISIANA. 

In this State, the wife cannot appear in court without the authority of 
her husband, though she may be a public merchant, or hold her property 
separate from him. Even then, she cannot alienate, mortgage, or acquire 
by gratuitous or unencumbered title, without his written consent. She 
may be authorized by the judge of probate upon his refusal; and if separ- 
ated from bed and board, has no need of the authorization of her husband. 
If a public merchant, she may, without being empowered by him, obligate 
herself in any thing relating to her trade ; her husband is also bound, if 
there is a community of property. She is considered a public merchant 
if she carries on a separate trade, but not if she retails only the merchan- 
dise of the commerce carried on by him. If the husband is under inter- 
diction, or absent, the judge may authorize her to act as if unmarried. 
She may make a will without his authority. Civil Code, art. 121- 132, 
1239, 1467, 1779. But she cannot become an executrix without his con- 
sent or the court's. Id. art. 1757. She may act as a mandatary. Id. art. 
1780. Neither party can be a witness for or against the other. Id. art. 
2260. They may, by marriage contract, determine the rights of property; 
but cannot change the legal order of descents (this restriction not affecting 
donations inter vivos or mortis causa, or donation by the marriage contract 
according to the rules for donations inter vivos or mortis causa) , nor dero- 
gate from the husband's rights over the person of his wife and children, or 
as head of the family, nor with respect to children, if he survive the wife, 
nor from the prohibitory dispensations of the Code. Id. art. 2305-2307, 
2316. The property of married persons is divided into "separate" and 
"common;" and the separate property of the wife into "dotal" and 
" extra-dotal " or " paraphernal." The " dotal " is that which the wife 
brings to the husband to assist him in bearing the expenses of the marriage 
establishment. Id. art. 2314, 2315, 2317. Full provisions exist as to the 
settlement, administration, recovery, subject-matter, &c, of dowry, and 
the rights of both parties therein, effect of insolvency of the husband, 
marital portion, &c, id. art. 2317-2354, 2358, 2359; as to the administra- 
tion, fruits, &c, of the extra-dotal effects. Id. art. 2360-2368. The wife 
has a legal mortgage on her husband's immovables (which he may release 
by giving a special mortgage to the satisfaction of a family meeting, &c, 
or in accordance with stipulations in the marriage contract) ; but it shall 



A CITIZEN OF THE UNITED STATES. 221 

not be lawful to stipulate that no mortgage shall exist, id. art. 2357; R. S. 
1856, p. 242, tit. Husband and Wife; and a privilege on his immovables 
for the restitution of her dowry, &c. Id. art. 2355-2357, 2367, 3182, 3187. 
This is in lieu of dower, id. art. 3219; and is seventh in the order of pref- 
erence. Id. art. 3221. A partnership or community of acquets or gains 
exists by operation of law in all cases. But the parties may modify or 
limit it, or agree that it shall not exist; in which case there are provisions, 
preserving to the wife the administration and enjoyment of her property 
and the power of alienating it as if paraphernal, with reference to the ex- 
penses of the marriage and liability of the husband. Id. art. 2312, 2369, 
2370, 2393-2398. This community consists of the profits of all the effects 
of which the husband has the administration and enjoyment, either of right 
or in fact; of the produce of the reciprocal industry and labor of both hus- 
band and wife ; and of the estates which they may acquire during marriage, 
either by donations made jointly to them both, or by purchase, or in any 
similar way, even though the purchase be in the name of one and not of 
both. Debts contracted duriug marriage enter into this partnership, and 
must be acquitted out of the common fund; but those contracted before 
marriage, out of individual effects. The husband is the head and master 
of the community; administers its effects, disposes of the revenue, and may 
alienate by an unencumbered title, without the wife's consent. Id. art. 
2371-2373. There are special provisions as to conveyances and disposi- 
tions of the community property and gains ; effect of dissolution of mar- 
riage ; ability of the wife to exonerate herself from debts contracted during 
marriage by renouncing the partnership; effect of such renunciation; death; 
survivorship; separation a mensa et ihoro ; separation of property during 
coverture; rights of creditors, &c, id. art. 2373-2392, 2398-2412; R. S. 
1856, p. 242, tit. Husband and Wife; the absence of one party. Code, art. 
65. Either party, by marriage contract or during marriage, may give to 
the other all he or she might give to a stranger. R. S. 1856, p. 79, § 17. 
Property acquired in the State by non-resident married persons, whether 
the title is in the name of either or in their joint names, is subject to the 
same provisions as if owned by citizens of the State. R. S. p. 103. If 
husband or wife die intestate, without ascendants or descendants, his or 
her share in the community property is held by the survivor in usufruct for 
life; if the deceased intestate leave issue of the marriage, the survivor holds 
such issue's inheritance in usufruct till death or second marriage. R. S. 
pp. 103, 104. A married woman, in certain cases, may be authorized to 
contract debts and give mortgages; or renounce her rights in favor of third 
persons; or appoint an agent. R. S. pp. 560, 561, tit. Woman. 

MAINE. 

In this State, a married woman holds as her separate property whatever 
she possessed before marriage, and whatever comes to her after marriage, 
unless purchased by the husband's money or coming from him so as to 
defraud his creditors, Acts of 1855, c. 117; and has all the usual rights of 
a single woman as to it, R. S. c. 115, § 82; Acts of 1855, c. 120; but can- 
not convey property received through the husband or his relatives unless he 



222 THE PERSONAL RIGHTS OF 

join. Acts of 1856, c. 250. Her property is alone liable for her debts 
before marriage. Acts of 1852, c. 291. Although under twenty-one years, 
she is of full age. Id. There are provisions as to a married woman being 
administratrix, or executrix, R. S. c. 106, § 35; guardian, R. S. c. 110, 
§ 24; insane, id. c. 112, § 1; Acts of 1853, c. 6; whose husband is under 
guardianship, Acts of 1853, c. 33; and the homestead, to the value of 
$500, is not liable for his debts, and goes to his widow and minor 
children. Acts of 1850, c. 207. Real estate may be conveyed to a wife 
by her husband as security for a bona fide debt, and this may be con- 
veyed by her without his being joined in the deed. Acts and Resolves, 
1863, c. 214. Letters of administration may be granted on her estate, and 
all debts contracted for her benefit shall be paid by her executor and allowed 
him. She may engage in trade on her own account, and any contract 
made by her is valid, and her property is liable to execution for her debts, 
his property is exempt in any such case, unless he were a party to the con- 
tract. Id. c. 77, 148; Acts of 1866, c. 52. A homestead not exceeding in 
value $500 is exempted from execution. R. S. p. 502. 

MARYLAND. 

In this State, if a married infant unite with her husband in a convey- 
ance to release dower, courts of equity may declare it valid if equitable. 
Dorsey, Laws of Md. ; Public Acts of 1832, c. 302, § 7. She cannot be 
executrix or administratrix unless her husband give a bond. Id. ; Public 
Acts of 1798, c. 101, Sub. c. 4, § 8. Her cJwses in action, at her death, 
become her husband's without his taking out letters of administration. Id. ; 
Sub. c. 5, § 8. An alien wife of a citizen husband residing in the United 
States has her dower, and may hold lands by purchase and transfer the 
same as if a citizen. Id.; Public Acts of 1813, c. 100. Any devise or 
bequest to her is construed to be in bar of her dower, unless otherwise 
expressed. Id.; Public Acts of 1798, c. 101, Sub. c. 13, §§ 1, 3. Insur- 
ance on life is secured to her, if the premium do not exceed $300. Public 
Acts of 1840, c. 212. Her receipt for money deposited before her mar- 
riage in any bank, is valid, if no creditor of the husband has previously 
attached it. Public Acts of 1853, c. 335. Married woman may make 
a will with consent of her husband subscribed if she have been ex- 
amined apart; not to apply to property acquired after the adoption of this 
code. Code 1860, p. 686. Her property belonging to her at marriage or 
acquired during coverture is not liable for his debts, but she holds it for 
her separate use the same as if sole. She may convey by joining with her 
husband. Property passing from him to her after coverture if in fraud of 
creditors is void. If she die intestate leaving children, he has a life-estate 
in both real and personal property; but if she leave no children his life 
estate in her real and personal property vests in him absolutely. Code 
1860, p. 325, §§ 1, 2, 7. It is not necessary for her to have a trustee to 
secure the separate use of her property, but she may make one by joining 
to a deed with her husband. When there is none she may sue by her next 
friend. Id. 325, § 14. She has dower in lands held by equitable title of her 
husband. If he be convicted of bigamy she is at once endowed of one- 



A CITIZEN OF THE UNITED STATES. 223 

third of his real estate, with like remedy for its recovery as in other cases, 
and to one-third of his personal estate as if he had died intestate. He in 
such case forfeits his title to curtesy, and his claim to any estate personal 
or mixed which he might have in her right. She, on such conviction, for- 
feits dower, and her share of the personal estate. Id. p. 207, § 11. If 
leases for a definite term or renewable for ever are made to her, the rent of 
which shall be unpaid for the space of ninety days, she may levy upon the 
holders of such lease by distress, or bring an action for the recovery of the 
premises. She may bind herself and assigns by covenants running with 
the land as if a feme sole. Laws of Md. 1867, p. 427, §§1,2. She may 
release her right of dower in real estate, by joint or separate deed. Id. 
327, § 11. 

MASSACHUSETTS. 

In this State, provisions exist for the benefit of the wife when deserted 
by the husband (R. S. c. 77), to a great extent superseded by the Laws of 
1855, c. 304, post. A married woman coming into the State, whose hus- 
band never lived with her in the State, has the same rights as a single 
woman in matters of contract and suit. R. S. c. 77, § 18; Gregory v. Paul, 
15 Mass. 31 ; Abbott v. Bayley, 6 Pick. 89. Antenuptial contracts in favor 
of the wife are valid, and she may receive any conveyance (except from her 
husband), bequest, or devise to her own use, without a trustee, and has all 
the powers respecting it a trustee would have, and is liable for any contract 
made or wrong done before marriage. Laws of 1845, c. 208. A woman 
married after June 4, 1845, holds, as a single woman might, all property 
held before marriage or subsequently acquired, except by gift from her 
husband; but cannot convey real estate (except for a term not exceeding 
one year), nor shares in a corporation, without the written consent of her 
husband, or the consent of a judge of the Supreme Court, Court of Com- 
mon Pleas, or Probate, nor bequeath away from her husband more than 
half her personal estate, without his consent in writing, and her property 
is alone liable for her antenuptial debts. Any married woman may dis- 
pose by will of her real estate, but cannot thereby deprive her husband of 
his tenancy by the curtesy; and her real estate and shares in a corporation 
are not liable for his debts contracted since June 3, 1855. And any 
married woman may be a sole trader. Laws of 1855, c. 304. There 
are also provisions as to guardianship, R. S. c. 77, 79, and insanity. 
Laws of 1855, c. 233; 1856, c. 99, 169. A homestead to the value of $800 
is not liable for the debts of a householder, but after his death is for the 
benefit of his widow and family, for her life and while any child is a minor, 
provided it be designated in the deed of purchase as a homestead under 
this act, or if already purchased, be so declared in a deed acknowleged and 
recorded, and is safe only from debts contracted after the record, and is not 
exempt from taxes, debts incurred by purchase, and debts for ground-rent 
of land upon which it is situated. This exemption shall not defeat any lien 
or encumbrance existing when the law was passed. A husband cannot 
convey such homestead without his wife joins in the deed. Laws of 1851, 
c. 340. If a man dies testate, leaving a widow, she may, at any time within 
six months after probate of the will, file in the probate office her waiver of 



224 THE PERSONAL RIGHTS OF 

the provisions made for her in the will; and shall he thereupon entitled to 
such portions of his real and personal estate as she would have been en- 
titled to if her husband had died intestate. But she takes only for life 
her share of the personal property over $10,000. Acts and Res. 1861, 
c. 1. Married woman doing business on her own account must file a certifi- 
cate in clerk's court, giving name of husband, nature and place of busi- 
ness; if she neglects, her husband may file one; and in case both neglect so 
to do, then the woman shall not be allowed to claim any property employed 
in the business, as against her. husband's creditors; and he shall be liable 
on all contracts made in the prosecution of such business. Laws and Res. 
1862, c. 198. Policies of insurance made payable to her or to any one in 
trust for her, whether by her husband or any other person, shall inure to 
her separate use, and that of her children, independently of her husband, 
the person assigning, or the creditors of either. But if the premium be paid 
with an intent to defraud creditors, an amount equal to such premium shall 
inure to the benefit of the creditors, subject to Statute of Limitations. Id. 
1864, c. 197. Any accumulation of income of an estate held in trust for her, 
in the hands of trustees, or which has been received by her and invested 
together with the accumulations thereof, may be disposed of by her during 
her lifetime, or by will or appointment to take effect after her death, and 
with her written consent trustees may hold or invest such income on the 
same trusts as the principal estate is held. She may be a witness when 
contract was made by her in the absence of her husband. Supplement to 
Gen. Stats, p. 270 ; Id. 407. Her earnings not held by trustee process for 
his debt. Laws of 1868, c. 95. She may be executrix, administratrix, 
guardian or trustee, and make contracts, or transfers and conveyances of 
property (except with or to her husband) and sue or be sued, all as if sole, 
except that there can be no suits between husband and wife. Laws of 1874, 
c. 184. 



MICHIGAN. 

In this State, if a husband abandons his wife, or is in the State prison, 
she may be authorized, if of age, to act and be liable, in general, as" a feme 
sole, in which case her contracts bind both as if their marriage had subse- 
quently taken place. She may join with her guardian to release dower, 
and any agreement between her and such guardian is binding. The same 
rules apply to a married woman who comes into the State without her hus- 
band. The property acquired by a married woman, before or after cover- 
ture, is free from her husband's liabilities; but she cannot sell it without 
his consent, or authority from court, nor if separated from him can she 
remove it from his premises without such authority. R. S. c. 85. She 
may recover land lost by his default, and defend when he neglects. Id. 
c. 113, §§ 3, 4. The marriage of an executrix extinguishes her authority. 
Id. c. 69, § 8. So of an administratrix. Id. c. 70, § 13. A feme covert 
may have a general and beneficial power to dispose, during marriage, 
of lands conveyed to her. Id. c. 64, § 8. She may devise her property, 
id. c, 68, § 1; and may have dower through an alien. Id. c. 66, § 21. 
A married woman may insure the life of her husband for her benefit 



A CITIZEN OF THE UNITED STATES. 225 

and that of her children, but the annual premium must not exceed 
$300. Laws of 1848, No. 233, p. 350. When a divorce from bed and 
board, she has the same power over the property as a feme sole. Compiled 
Laws, p. 965, § 2£. When the divorce is not her fault, or on the imprison- 
ment of her husband for life, she is entitled to her real estate, and a reason- 
able amount of the personal, which came to him by reason of the marriage. 
But when she is divorced for her adultery, he holds her real estate as long as 
they both live, and if there be children, he holds it as tenant by curtesy; 
and her personal estate for ever. Id. 956, §§ 18, 19, 25. A homestead of 
the value of $1,500 is exempted from execution. Compiled Laws, c. 132; 
Laws of 1861, No. 218. She may sue and be sued, as to her sole property, 
as if unmarried. Laws of 1857, No. 132; id. No. 196. 

MINNESOTA. 

In* this State, all property owned by any married woman, real or per- 
sonal, at her marriage, or received afterwards, is her own, as if unmarried, 
and is free from the control of her husband, and is not liable for his debts. 
She may make any contract she could make if unmarried; and any transfer 
of her property, except that the husband must join in the deed of her 
realty, unless he have deserted her. Neither husband nor wife is liable for 
the debts of the other, except that the husband is liable for necessaries fur- 
nished to the wife, as at common law. Either may be the agent of the 
other, or contract with the other, except as to the sale of real estate from 
one to the other. A husband deserting his wife, or divorced, may be 
decreed by the District Court, on an action by the wife, to be debarred from 
his curtesy, and the wife may be permitted to act with reference to her real 
property as if sole. Laws of 1869, c. 56. A homestead of eighty acres 
not included in any incorporated town, city, or village, or one lot in any 
town, city, or village, is exempt from sale by execution. Rev. St. 1866, 
c. 68. 

MISSISSIPPI. 

In this State, the rents, issues, and profits of her real estate inure to 
her sole and separate use. Revised Code, 1857, p. 336. Suits affecting 
her separate property may be prosecuted and defended in their joint names. 
Id. p. 336. Covenants in consideration of marriage and marriage settle- 
ment must be acknowledged and recorded. Id. p. 310. She may defend 
in a suit for her land if the husband neglects. Id. p. 316. The husband 
is not liable for the wife's antenuptial debts, nor for any debt contracted 
after marriage, if she hold separate property. Id. 336. Wife may con- 
vey her real estate by joint deed, and is bound by her covenants in such 
deed. Revised Code, p. 307, art. 4. Every description of property of a 
married woman and the income of such is her own separate property, and 
is not liable for his debts, nor can it be encumbered in any way but by joint 
deed. Id. 385, art. 23. He is entitled to curtesy in her real estate, and if 
she leave no children, inherits her personal property. Id. 337, art. 28. 
She may dissent from his will if her separate property be not equal to 
what would be her dower and distributive share in her husband's estate. 

15 



226 THE PERSONAL RIGHTS OF 

Id. 338, art. 31, 32. Her separate receipt is good, and her bond executed 
jointly with her husband binds her separate property. Id. 337, art. 30. 
A homestead is exempted from execution, not more than one hundred and 
sixty acres, and not more in value than $1,500. Id. 529. 

MISSOURI. 

In this State, a married woman may not be executrix or administratrix. 
General Statutes (1865), p. 480. Marriage contracts must be recorded. 
Id. 460. The rents and issues of her real estate, owned at marriage or 
afterwards acquired, are not liable for the debts of her husband, nor is 
his interest in her real estate, excepting that the annual products may be 
levied upon for a debt of the husband created for necessaries for the wife 
and family, or for the cultivation or improvement of her. real estate. Id. 
p. 464. She may devise her real estate, but not so as to affect his curtesy. 
Id. A homestead is exempt from execution, not more than one hundred 
and sixty acres, and not exceeding $1,500 in value. Id. p. 448. The wife 
may insure for her benefit either her husband's life or her own; and no life 
insurance effected, whether before or after marriage, by the husband upon 
his own life shall be liable for his debts, unless so expressed upon the 
face of the policy. But a creditor may insure his debtor's life. Id. p. 
464. If husband without cause abandon his wife, or lawful children under 
twelve years of age, he is punished by fine of not less than $50 nor more 
than $500, or by imprisonment for not less than one month nor more than 
twelve months. Laws of Missouri, 1867, p. 112. 

NEBRASKA. 

In this State, all the property of a married woman coming to her 
either before or after marriage, and all the rents and profits thereof, are 
her sole and separate property, and may be managed by her alone with- 
out interference by her husband; and they are not liable for his debts. 
She may make any contract in reference to it that a married man may 
make as to his property; may sue and be sued, and carry on any business; 
and her earnings are her own. General Statutes, 1873, p. 465. A home- 
stead not exceeding one hundred and sixty acres of unincorporated land, 
or not exceeding two lots in any town, city, or village, is exempted from 
sale by execution. Laws of 1867, p. 91. 



NEVADA. 

In this State, all property of the wife, real or personal, held at mar- 
riage, or afterwards acquired by gift, bequest, devise, or descent, is her 
separate property; and all the husband's so held or acquired is his separate 
property. All property acquired otherwise by either party, after marriage, 
is common property. An inventory of her property must be made and re- 
corded. During marriage, the husband has the exclusive control and man- 
agement of the common property. At her death, if he survives her, all of 
the common property goes to him. If she survives him, at his death 



A CITIZEN OF THE UNITED STATES. 227 

half of the common property goes to her. The District Court may assign 
a trustee to take care of the wife's separate property, if the husband mis- 
manages the same. The husband has the same control and disposition 
of the common property as of his separate estate. Dower and curtesy are 
abolished. The separate property of the wife is liable for the antenuptial 
debts of the wife, but his is not. Marriage contracts, duly executed and 
recorded, may vary these rights and interests. Laws of 1865, c. 76. She 
may carry on business under her own name, under certain regulations. 
Laws of 1867, c. 10. A homestead not exceeding in value $5,000 is 
exempt from sale on execution. Laws of 1865, c. 72. 

NEW HAMPSHIRE. 

In this State, a married woman holds free from interference of her 
husband all property owned before or acquired after marriage, if not 
occasioned by payment or pledge of his property. Gen. St. 1867, p. 337. 
She has the same rights and remedies as to the same as if unmarried. P. 
338. After three months of desertion, or of any other thing which if 
longer continued will be a cause of divorce, the wife may hold in her sev- 
eral right, and dispose of property acquired by her in any way, and the 
earnings of the minor children, until the desertion ceases. And the judge 
of probate in the county where she resides may order provision for her and 
her children from any property of the husband in the State. She shall 
then have the same rights; and her property shall descend, as if single. 
Id. 337. The will of the married woman passes property held in her right 
to any devisee except the husband; but shall not affect his rights in the 
estate, or to a distributive share thereof. Id. 338. The homestead, to 
the value of $500, is exempt from attachment and execution, and is in no 
way liable for the husband's debts, nor subject to distribution or devise, 
while a widow or a minor child lives thereon. But this right may be 
waived by deed of husband and wife, and is not valid against a claim or 
note or mortgage of husband and wife, or for labor less than $100, or a 
lien by the seller of the estate for its price, or a debt contracted for the 
erection of the buildings, or for taxes. Laws of 1868, p. 130. He is not 
liable for her antenuptial debts, but her property is. Laws of 1871, c. 27. 

NEW JERSEY. 

In this State, her property, real or personal, acquired before or after 
marriage, is free from the husband's control or debts. Public Acts of 1852, 
p. 407. Antenuptial contracts are valid. Id. Any insurance of life for 
her benefit is secured to her or her children, if the premium does not ex- 
ceed $100. Public Acts of 1851, p. 34. If her husband dies, she may 
recover from his estate the personal property belonging to her before mar- 
riage. Public Acts of 1851, p. 201. If she dies, her husband may 
administer and retain her personal property. R. S. tit. 10, c. 7, § 15; 
Adm'rs of Donnington v. Adm'rs of Mitchell, 1 Green, Ch. 243. If he 
abandon or desert her, she may have, by order of court, maintenance from 
his property; but during this maintenance he is not liable for her debts. 



228 THE PERSONAL RIGHTS OF 

R. S. tit. 33, c. 3, § 10. She cannot dispose of real estate by will. R. S. 
tit. 10, c. 10, § 3. If the husband dies leaving a family, his household 
goods to the value of $200, and real estate occupied by him at his death 
to the amount of $1,000, are secured to his widow and children; and no 
waiver of this exemption is valid. Public Acts of 1851, p. 278, § 4; Pub- 
lic Acts of 1852, p. 222, § 1. Nor can such homestead be sold or encum- 
bered, unless other $1,000 are invested in other buildings for a homestead; 
and until this investment the title of the purchaser is not good. Id. § 7. 
In a joint deed by husband and wife (if she be of full age), her covenants 
of warranty will bind her in the same manner as if she were unmarried. 
If her husband be a lunatic, or confined in the State prison for crime, she 
may dispose of her interest in any property, so as not to interfere with his 
rights in the same property. Laws of N. J. 1857, c. 189, 277. If living 
apart from her husband, she may, by joining his name with hers (though 
without his consent), bring her suit in any court of record; and he cannot 
control, release, or discontinue such action. In such case she may also, 
by decree of court, convey any interest in real or personal property, except 
a gift from her husband, without his concurrence, but cannot affect any 
right which he may then have in such property. Id. c. 337, 344. 

NEW YORK 

In this State, all a married woman's real and personal estate, whether 
acquired before or after marriage, if not from her husband, may be held 
by her for her own use, as if she were unmarried, and is not liable for 
his debts nor subject to his control. R. S. Part II. c. 8, tit. 1, art. 6, 
§§ 65-67, 68. Power of disposal maybe given her in any conveyance or 
devise to her, and she may execute them without the husband's concur- 
rence. Part II. c. 1, tit. 2, art. 3, §§ 93, 100, 103, unless their terms require 
that. Id. § 123. But she must acknowledge it privately, as she must 
also in cases of conveyance. Id. § 130. The husband may administer 
on her estate, and is liable for her debts to the extent of assets received 
from her property, and is liable for the whole if he does not take out let- 
ters. Part II. c. 6, tit. 2, art. 2, § 29. Antenuptial contracts are valid. 
Part II. c. 8, tit. 1, art. 6, § 69. Insurances of life for her benefit are 
secured to her if the premium does not exceed $300. Id. § 70. Her re- 
ceipt is valid for her deposits in any bank. Id. § 73. She may vote by 
proxy in corporations, of which she is a member, except mutual fire in- 
surance companies. Id. § 74. She may have the custody of minor chil- 
dren by order of court. Id. tit. 2. In an action between herself and her 
husband she may sue and be sued alone. Id. Part II. c. 4, tit. 3, § 114. 
Only her separate estate is liable for her debts before marriage. Public 
Acts of 1853, c. 576, §§ 1,2. Insurance effected by married woman on 
her husband's life, in case of her death before him, goes to his or her 
children, for their use, as shall be provided by the policy, and to their 
guardians if under age. Laws of N. Y. 1862, p. 214. She may convey 
her real or personal estate, and her covenants of warranty bind her sepa- 
rate property. She may sue and be sued, and may bring actions in her 
own name for injuries to her person and character; money received aa 



A CITIZEN OF THE UNITED STATES. 229 

compensation in such cases is her separate property. No bargain made "by 
her respecting her sole property, or in the carrying on of any trade, will 
render her husband or his property liable. Nor is he liable for costs of 
action brought in her name. He cannot apprentice her child or part trans- 
fer control of him, without her consent in writing. Judgments may in all 
cases be enforced against her separate property as if she were sole. Id. 
1862, c. 172. She may act as an executrix or administratrix or guardian 
of minor, and her bonds given in these respects bind her as an unmarried 
woman. Id. vol. ii. 1867, p. 1927. In any action except a criminal one, 
the husband or wife of any party thereto, or of any person in whose be- 
half it is brought, are competent witnesses, and are so to prove the fact of 
marriage in case of bigamy. Id. pp. 21, 22. A homestead of the value of 
$1,000 is exempt from execution. Laws, 1850, c. 260; Rev. St. tit. 1, p. 
3, c. 6, § 28. 

NORTH CAROLINA. 

In this State, a marriage settlement or contract is invalid against cred- 
itors if a greater value is secured to the intended wife and children of the 
marriage than is received with her in marriage, and the estate of the hus- 
band free from debt at the time of the marriage. In case of suit, the 
burden of proof is on the person claiming under such contract. A legacy 
to the wife in general words and not in trust, or a distributive share of an 
intestate estate falling to her during coverture (if the estate of the husband 
and wife is not at the time of the marriage thus sufficient), is taken as a 
part of the portion received with the wife. Revised Code, c. 37. Real 
estate belonging to the wife at the time of the marriage cannot be sold or 
leased by the husband, except with her consent, ascertained by private 
examination, and no interest of the husband therein is subject to execution 
against him. Id. c. 56, § 1. The proceeds of the wife's land sold by court 
are secured to her or her representatives. Id. c. 82, § 7. Provision also 
exists by which a married woman may insure the life of her husband for 
her sole benefit, c. 56, § 2. Power may be given her by will, deed, &c, 
to dispose by will of property thereby conveyed, c. 119, § 3. If she marry 
under the age of fifteen, unless her father assents to the marriage in writing, 
her estate is secured to her separate use, c. 68, § 10. Homestead exempt 
from execution to the value of $1,000. Public Laws, 1868-69, p. 333. He 
is not liable for her antenuptial debts. Id. 1871, c. 193. 

OHIO. 

In this State, the interest of the husband in the wife's real estate, and 
her personal and real property, held at her marriage, or subsequently 
acquired, is her own separate property, not liable to the control, or for the 
debts, of her husband. Swan & Sayles's Supplement to Rev. St. 1868, 
pp. 389, 390. But she cannot affect the husband's curtesy. Id. The 
husband of an insane wife may be authorized to sell his real estate without 
her joining, free from her dower. Swan's Rev. St. 1860, p. 852. The 
nusband must be joined with the wife in all actions to which she is a party, 
except those concerning her separate property, or contracts, or actions be- 
tween themselves, when she may sue and be sued alone, and for divorce 



230 THE PERSONAL RIGHTS OF 

or alimony, when she sues alone. Id. p. 953. Husband and wife may not 
testify for or against each other while the relation subsists or afterwards. 
Id. p. 1038. The husband or wife may insure his life (the annual premium 
not to exceed $150, otherwise the surplus insurance to go to his representa- 
tives) for the benefit of her and her children. Id. p. 737. A married woman 
may dispose of her property by will. Id. p. 1615; and the will of a feme 
sole is not revoked by her subsequent marriage. Id. p. 1622. The home- 
stead to the value of $500 is exempt from execution, &c. Id. p. 1145. A 
married woman whose property is appropriated for public use is empowered 
to do any thing necessary for an owner to do, as if she were unmarried. Id. 
1859, p. 147. She has full power to contract for repairs and for cultivating 
her own property in her own name, during coverture, but can not lease for a 
longer period than three years, and during her life, and the life of any of her 
heirs ; such property can not be taken by his creditors ; but his estate by 
curtesy remains : and in all actions in regard to her separate estate it only is 
liable for any judgment rendered. Id. 1866, pp. 47, 48. Any personal 
property coming to her, before or during marriage, is her separate property, 
wholly under her control, and not liable for her husband's debts. Act, 
March 30, 1871.- 

OREGON. 

In this State, the property of a married woman is deemed her separate 
property, and not liable for the debts of her husband, from and after her 
declaration of her intention to hold it as separate, duly executed and 
acknowledged, shall be recorded by the county clerk, unless the same be 
afterwards revoked by her. Compiled Statutes, 1864, p. 786; Laws of 
1866, p. 6. Husband and wife may convey her real estate by their joint 
deed; but she is not bound by any covenant therein. Comp. L. p. 646. 

PENNSYLVANIA. 

In this State, the wives of mariners and others at sea may trade as, and 
have generally the rights of, femes sole. Purdon's Digest of Laws of Penn. 
(9th ed. by Brightly, 1862), p. 474. The husband administers upon his 
deceased wife's estate, and she generally upon his. Id. p. 277. She 
retains all property owned before or obtained after marriage, free from 
the control or debts of her husband. Id. p. 609. He is not liable for her 
antenuptial debts. Her property is liable for her debts and torts, and 
execution must first be had against it. Id. p. 700. And she may dispose of 
it by will. Id.; Lancaster Co. Bank v. Stauffer, 10 Penn. St. 398; Lefever 
v. Witmer, id. 505; Cumming's Appeal, 11 id. 272; Goodyear v. Rumbaugh, 
13 id. 480; s. c. Law Jour. July 29, 1850. But (except in case of prop- 
erty held in trust for her separate use by virtue of the terms of a deed or 
will) her power to bequeath is restricted, so that her surviving husband may 
elect to take such interest in her property as she, surviving, could elect to 
take in his; or else his estate by the curtesy. Id. p. 701. She may sue alone 
for her money, or perhaps with her husband, Goodyear v. Rumbaugh, 
supra; and with her husband for her estate, a recovery to be for her benefit, 
or maintain trespass for injury to her property, though he dissents, and 



A CITIZEN OF THE UNITED STATES. 231 

he cannot sue therefor alone. Goodyear v. Rumbaugh, supra. Marriage 
does not, even with her consent, dissolve her testamentary guardianship. 
Cumming's Appeal, supra. His property is first liable for necessaries; for 
want of it, the wife's. Id. 700. He retains his estate by the curtesy, id.; 
but as to when it is generally liable to his creditors, see id. p. 1093; Lan- 
caster Co. Bank v. Stauffer, supra ; Lefever v. Witmer, supra. A trustee 
may be appointed of a married woman's property, and she may declare 
trusts. Duulop, p. 1096. There are also provisions by which claims for 
personal injury to the husband survive to the widow, id. p. 1145; by which 
married women may loan to their husbands, id.; and for insanity of the 
wife. Id. p. 1170. If the husband does not provide for his wife, or deserts 
her, she has the rights of a, feme sole ; and if intestate, her property descends 
as if he had previously died. Id. 702. In such case, or if divorced a mensa 
et thoro, she may maintain an action for slander or libel, and may recover 
her separate earnings and property; but if her husband is defendant, in the 
name of her next friend. Id. If of lawful age, and entitled to a legacy, &c., 
she may execute a refunding bond and other instruments to an executor 
or administrator. Id. No judgment obtained against her husband before 
or during marriage shall bind or be a lien on her real estate, or his interest 
as tenant by curtesy. And by joining with him she may convey any lands 
conveyed to or acquired by her to her separate use, which conveyance will 
be as valid as if in execution of a power contained in the deed creating such 
estate. Laws of Penn. 1863, pp. 212, 215. But if such right has been 
withheld in the deed, will, or other instrument which created the separate 
estate, she cannot convey. Id. 1867, p. 67. Her earnings are her own 
property. Id. 1872, art. 24. 

RHODE ISLAND. 

In this State, there is a provision substantially like that in Massachusetts 
as to a married woman coming into the State without her husband, and 
there living without him. Rev. St. 1857, p. 314. Rents and profits of her 
real estate secured to her. Her chattels real, furniture, plate, jewels, 
shares in an incorporated company, money deposited in savings-bank, or 
debts due to her and secured by mortgage, may be transferred by joint 
deed of husband and wife. All other personal estate she may dispose of 
as if unmarried. Id. p. 316. Any married woman may dispose of her 
real estate by will, but not to deprive her husband of his tenancy by the 
curtesy. Id. 317; Acts and Res., January Session, 1856, p. 68. Her 
deposits in an institution for savings are her own property. Id. p. 73. Any 
policy of insurance for her benefit, not exceeding the sum of $10,000, is 
hers, independently of her husband or the person effecting the insurance, 
or the creditors of either. Public Laws, 1860, p. 96. 

SOUTH CAROLINA. 

In this State, the real and personal property of a married woman, whether 
held by her at the time of the marriage, or accrued to her thereafter in any 
way, shall be her separate property, and not subject to levy or sale for her 
husband's debts. Statutes of 1870, No. 220. She may bequeath, devise, 



232 THE PERSONAL RIGHTS OF 

or convey her separate property, as if unmarried; and, if she dies intestate, 
her property shall descend in the same manner as is provided for the prop- 
erty of husband. She may purchase any property, and contract in refer- 
ence to it, as if unmarried. Id. Her husband is not liable for her debts 
contracted before marriage, nor for those contracted after, except for her 
necessary support. Id. A homestead of the value of $1,000 is exempt 
from execution. Stat, of 1868, No. 16; and also $500 worth of personal 
property. Stat, of 1870, No. 273. When the action concerns her sepa- 
rate property, she may sue and be sued alone. Stat, of 1870, tit. 3, p. 451 ; 
and judgment may be entered against her separately, and execution be 
levied on her separate property. Id. p. 491. 

TENNESSEE. 

In this State, the wife may manage her own and her husband's prop- 
erty, when he is incapacitated. Code of Tenn. 1858, p. 488; and her 
property is not liable in such case f©r his debts. Id. Property acquired 
by her, subsequent to an abandonment by him, or separation from him, in 
consequence of ill usage, is not liable for his debts. If she live with him 
again, it is. Id. p. 488. Marriage contracts are not good where more prop- 
erty is concerned than the portion actually received with the wife at the 
time of marriage; but subsequent legacies to her are considered as property 
received by her. Id. p. 369. A feme covert may dispose by will of her own 
estate. Id. p. 488. A homestead of the value of $1,000 is exempted from 
execution, and shall not be aliened, if the owner be married, except by 
the joint deed of him and his wife. Laws of 1871, c. 71. 

TEXAS. 

In this State, the marriage of a female minor gives her all the right she 
would have if of age. Paschal's Digest of Texas Laws, 1860, art. 4632. 
All property acquired by either party before marriage, or by gift, devise, 
or descent afterwards, is the separate property of each; but the husband 
has the management of the whole. Id. art. 4641. Property acquired by 
either during marriage, in other ways, is common; the husband may dis- 
pose of it during coverture; if there are no children, the whole goes to the 
survivor, otherwise one-half. Id. art. 4642. The parties may be jointly 
sued for necessaries and for expenses benefiting the wife's separate estate. 
Id. art. 4643. Execution may be levied on common property, or her 
separate property, at the plaintiff's option. Id. art. 4644. Marriage 
agreements must be made before a notary, and may be acknowledged by a 
minor, with the parent's or guardian's consent, id. art. 4633 ; and are 
unalterable after marriage. Id. art. 4634. A reservation of property 
therein to be good must be recorded. Id. art. 4635. Husband and wife 
may sue jointly and separately for her effects. Id. 4636. The wife acts 
jointly with her husband when she is appointed executrix or adminis- 
tratrix. Id. art. 1234. The homestead, not exceeding fifty acres of land, 
and not exceeding $500 of improvements (or, if in a town or city, $2,000 
in value), is exempt from execution. Const, of Texas, art. 7, § 22. 



A CITIZEN OF THE UNITED STATES. 233 

The survivor takes the common property subject to its debts ; nor is it 
necessary for her husband to administer on such property on her death, as 
he has the same control of it then that he had in her lifetime In case of 
his death, she has the same control, till she marries; when it will be sub- 
ject to administration. Id. art. 4647, 4652. Husband may fill antecedent 
contracts, and be compelled to give bonds for the proper management of 
the common property. Id. art. 4650. Her separate property is not 
chargeable with necessaries procured for him. Id. art. 4641, § 4. The 
common property is liable for all debts contracted during marriage. Id. 
art 4646. Either may by will give to the survivor the power to keep his 
and her separate property together, until each of the several heirs come of 
age; and to manage and control it, subject to law and the provisions of the 
will Id. art. 4653. 

VERMONT. 

In this State, in case of desertion, the Supreme Court may authorize a 
wife of eighteen years of age to convey her real estate, and the personal 
estate which came to her husband through her, if in the State and undis- 
posed of by him; and require any one owing her husband money in her 
right to pay it to her; and the proceeds, and her own earnings, and those 
of her minor children, shall be held by her for her own use. Laws of 1869, 
No. 13; and Gen. Stat. 1863, p. 469. If the real estate of a wife be taken 
for public use, the damages are to be secured to her benefit. Id. p. 470. 
The wife of a man under guardianship may join with the guardian in mak- 
ing partition, &c. Id. p. 470. The wife of a man confined in the State 
prison is a feme sole as to suits for causes arising after his sentence. Id. 
471. Married women may devise by will their inheritable real estate. Id. 
The rents, &c, of all her real estate, and her husband's interest in it, shall 
be exempt from attachment or execution for his sole debts, nor can he con- 
vey them without her. Id. She may insure the life of her husband for 
her own use, if the premium do not exceed $300. Id. 472. The home- 
stead, not exceeding $500 in value, exempt from sale on execution. Id. 
p. 456; Acts of 1851, No. 29. The earnings of a married woman and her 
deposits in savings-bank are not subject to trustee process by her husband. 
Gen. Stats, pp. 305, 549. The annual product of her real estate is subject 
to the payment of necessaries for herself and family, and for work and 
materials for their benefit. Stocks and bonds given to her by a parent are 
governed by the same law. Id. 47, § 18. When abandoned by her hus- 
band, she may maintain an action in her own name, as if unmarried. 
Laws of Vermont, 1866, p. 43. All personal property, and rights of per- 
sonal property acquired during coverture, or by inheritance or distribu- 
tion, shall be held to her sole and separate use. Id. 1867, p. 29. 

VIRGINIA. 

In this State, the husband of an insane wife may make a deed to bar 
her right of dower, on leave of court; but the same interest in the pro- 
ceeds shall be secured to her. Code of Virginia, tit. 36, c. 128, §11. If 



234 THE PERSONAL RIGHTS OF 

the husband die intestate, and without issue by her, she has the personal 
property which he had from or with her, and which he has not disposed 
of, if his other personal estate suffices to pay his debts. Id tit. 33, c. 123, 
§ 10. She can make no will except of her separate estate, or by a power 
of appointment. Id. tit. 33, c. 122, § 3. A homestead, not exceeding 
one hundred and sixty acres of land, including the buildings thereon, and 
not exceeding $1,200 in value. Acts of Assembly, 1867, c. 139. 

WEST VIRGINIA. 

In this State, most of the laws of Virginia remain in force. A married 
woman injured in person or property by an intoxicated person, may sue 
the seller or giver of the liquor for damages. Laws of 1872, c. 90. The 
value of the homestead is $1,000. Id. c. 193. 

WISCONSIN. 

In this State, the marriage of a feme sole executrix or administratrix 
extinguishes her authority, Rev. St. c. 67, § 8; c. 68, § 13; and of a 
female ward terminates the guardianship. Id. c. 80, § 27. The husband 
holds his deceased wife's lands for life, unless she left by a former husband 
issue to whom the estate might descend. Id. c. 62, § 30. Provisions exists 
by which powers may be given to married women, and regulating their 
execution of them. Id. c. 58, §§ 8, 15, 40, 44, 57. If husband and wife 
are impleaded, and the husband neglect to defend the rights of the wife, 
she. applying before judgment, may defend without him; and if he lose her 
land by default, she may bring an action of ejectment after his death. Id. 
c 3, §§ 3, 4. The real estate of females married before, and the real and 
personal property of those after Feb. 21, 1850, remain their separate prop- 
erty. And any married woman may receive, but not from her husband, 
and hold any property as if unmarried. Laws of 1850, c. 44. She may 
insure the life of her husband, son, or any other person, for her own exclu- 
sive benefit, but the annual premium must not exceed $300. Laws of 1862, 
c. 182. A homestead of forty acres, used for agricultural purposes, or one- 
fourth of an acre within a recorded town plot, or city, or village, is exempt 
from sale on execution. Rev. St. c. 134, § 23; Laws of 1863, c. 88; Laws 
of 1864, c. 270. No marriage contracted after March 25, 1872, makes the 
husband liable for the antenuptial debts of the wife ; but she may be sued 
for them as if unmarried. Her separate earnings are her own property, 
and she may be sued for them. All processes may issue against her 
except an execution against her person. Laws of 1872, c. 155. 



A CITIZEN OF TEE UNITED STATES. *J35 



MARRIAGE. 

The relation of marriage is founded upon the will of God and 
the nature of man, and is the foundation of all moral improvement 
and all true happiness. No legal topic surpasses this in importance; 
but some of the questions which it suggests are of much difficulty. 

No question can be more important than what constitutes a 
legal marriage ; for what can be more important to any one than 
to know certainly whether he or she is or is not a husband or a 
wife ; and yet there may be some uncertainty about it, not merely 
from the peculiar facts of an individual case, but from a want of 
precision and certainty in the principles or rules which decide this 
question. If persons are married in the usual way, before a magis- 
trate or a minister authorized to solemnize marriage, there is no 
question ; but there is some question whether a marriage is valid 
and effectual which consists merely of a contract between the two 
parties, with mutual promise and acceptance, with or without 
witnesses, and followed by cohabitation as man and wife ; but not 
solemnized in the method by which the laws of that place author- 
ize marriage. 

It may be considered as certain that the evidence of marriage 
from cohabitation, acknowledgment by the parties, reception by 
the family connection as man and wife, and general reputation, is 
receivable in nearly all civil cases. This, however, proceeds upon the 
ground of the actual probability that there was a regular marriage 
where such evidence exists. The presumption of such marriage 
arising from such evidence is always strong ; and in some States 
perhaps, especially in New York, this presumption has been pushed 
very far. It may be said that of late years many courts have 
manifested a tendency towards the view that such a mere contract, 
with no especial formality, might suffice to make a valid marriage ; 
and some cases come near to this conclusion. Nevertheless, we can 
only say that we know of no case whatever in which a mere agree- 
ment to marry, with no formality, and no compliance with any law 
or usage regulating marriage, is actually permitted to give to both 
of the parties, and to their children, all the rights and duties, and 
impose upon them all the obligations and liabilities, civil and crim- 
inal, of a legal marriage. We have referred to New York, and we 
may add Pennsylvania and Alabama, as States in which the courts 
appear to incline to the view that no especial form or ceremony is 
necessary. On the other hand, from cases in California and Oregon, 
it would seem that in those States the marriage is not legal unless 



236 THE PERSONAL RIGHTS OF 

the contract be declared before a person authorized to solemnize 
marriages, and in the presence of witnesses. 

It is everywhere agreed that a precise compliance with all the 
requirements or directions of law has not been deemed necessary. 
As to some important provisions, it has been held that a disregard 
of them was punishable, but did not avoid the marriage ; as the 
want of consent of parents or guardians where one party is a 
minor, or an omission of the publication of banns. The essential 
thing seems to be the declaration of consent, by both parties, 
before a person authorized by law to receive such a declaration. 

Consent being of the essence of this contract, it cannot be valid 
if made by those who, when they made it, had not sufficient mind 
to consent ; as by idiots or insane persons. Such a marriage is 
voidable during the life of both parties ; but if it be not set aside 
during the husband's life, his wife becomes entitled at his death to 
the rights of a widow. The Supreme Court in any State, and 
especially a court having full powers of equity, may make inquiry 
into the validity of the marriage, and decree accordingly that it is 
valid or void. Marriages are also void if another husband or wife 
of either of the parties be living, or if they are within the pro- 
hibited degrees of kindred ; and voidable by the injured party, if 
procured only by force or fraud. 

The wife may everywhere, even by common law, be the agent 
of the husband, and transact for him his business transactions, mak- 
ing, accepting, or indorsing bills or notes, purchasing goods, ren- 
dering bills, collecting money and receipting for it, and in general 
entering into any contract so as to bind him, if she has his authority 
to do so. And while they continue to live together, the law con- 
siders the wife as clothed with authority by the husband to buy for 
him and his family all things necessary in kind and quantity for the 
proper support of his family ; and for such purchases made by her 
he is liable. 

The husband is responsible for necessaries supplied to his wife, 
if he does not supply them himself. And he continues so liable if he 
turns her out of his house, or otherwise separates himself from her, 
without good cause. But he is not so liable if she deserts him 
(unless on extreme provocation), or if he turns her away for good 
cause. 

If she leaves him because he treats her so ill that she has 
good right to go from him and his house, this is the same thing as 
turning her away ; and she carries with her his credit for all nec- 
essaries supplied to her. But what the misconduct must be to give 
this right is uncertain. Some English cases are very severe on this 
point. In one, a husband brought a prostitute into his house, and 



A CITIZEN OF THE UNITED STATES. 237 

confined his wife to her own room under pretence of her insanity 
But the court held this to be insufficient. The Supreme Court of 
New York, in commenting upon this case, said that " the doctrine 
contained in it cannot be law in a Christian country." In America 
the law must be, and undoubtedly is, that the wife is not obliged to 
stay and endure cruelty or indecency. 

It may be added, that if a man lives with a woman as his 
wife, and represents her to be so, he is liable for necessaries supplied 
to her, and for her contracts, in the same way as if she were his 
wife ; and this even to one who knows that she is not his wife. 

The statutes of which we have given an abstract are intended 
to secure to a married woman all her rights. But in all parts of 
this country, women about to marry — or their friends for them — 
often wish to secure to them certain powers and rights, and to limit 
these in certain ways, or to make sure that their property is in safe 
and skilful hands. This can only be done by conveying and trans- 
ferring the property to trustees ; that is, to certain persons to hold 
the same in trust. This is done by a legal instrument, which is 
almost always an indenture / by which is meant an instrument 
under seal between two or more parties. This instrument must set 
forth precisely, and with legal accuracy, just what the trust is ; 
that is to say, just what the trustees or the woman or her husband 
may do, and just what they must do. This is one of those instru- 
ments which require peculiar care and exactness. We give as 
models or forms, two, differing in their terms and purposes. Both 
were drawn by very skilful lawyers, and will, with such changes of 
omission or addition or alteration as the circumstances of any case 
or the wishes of the parties make necessary, be useful and safe guides 
in the preparation of such instruments. 

(13.) 

AN INDENTURE TO PUT IN TRUST THE PROPERTY OF AN 
UNMARRIED WOMAN. 

This indenture of two parts, made and concluded this 
day of a.d. eighteen hundred and by and between 

of single woman, of the first part, and 

and of of the second part, 

Witnesseth, That the said party of the first part is seised and pos- 
sessed of certain real and personal estate, to wit, one undivided moiety of 
the reversion in and of a messuage and land in bounded as 

follows: 

a mortgage of a lot of land bounded on Street, and described 



238 THE PERSONAL RIGHTS OF 

in the deed of to which is recorded in the 

Registry of Deeds, lib. fol. a mortgage of a lot of 

land bounded on Street, and described in the deed of 

recorded in the said registry, lib. fol. a mortgage 

of two lots of land, bounded on Street, and described in the 

deed of to recorded in the said registry, lib. 

fol. a mortgage of a lot of land bounded on Street, 

and described in the deed of to recorded in the 

registry aforesaid, lib. fol. one hundred shares in the 

capital stock of the Bank, in twenty-five shares 

in the capital stock of the Bank, in and fifty 

shares in the capital stock of the Bank of also a note of hand, 

signed by the said for the sum of fifteen thousand dollars ; a 

note of hand, signed by the said for the sum of three thou- 

sand dollars; a note of hand, signed by and foi 

the sum of two thousand five hundred dollars; a note of hand signed by 
for the sum of six thousand dollars, which notes are severally 
secured by the lands and tenements, mortgaged as aforesaid; also a note 
of hand, signed by for the sum of one thousand dollars. 

All which real and personal estate the said party of the first part is 
desirous that the party of the second part should have and hold in trust 
for certain uses and purposes hereinafter set forth and expressed; and in 
conformity with said intention, and for the purpose of carrying the same 
into effect, the said party of the first part, in consideration of the sum of 
five dollars paid to her by the party of the second part, the receipt of 
which she doth hereby acknowledge, and for divers other good considera- 
tions moving her thereto, hath given, granted, sold, and conveyed, and 
doth give, grant, bargain, sell, and convey, all the said lands, tenements, 
and real estate, and doth hereby bargain, sell, transfer, assign, and set 
over all the aforesaid chattels and personal estate, as the same are above 
specified and described, unto the said and and their 

heirs and assigns. To have and to hold the said granted premises unto the 
said and and their heirs and assigns, and to the 

survivor of them, and his heirs and assigns for ever, to their own use, but 
in trust nevertheless for the purposes, objects, and intents hereinafter set 
forth and expressed, and for none other, namely : — 



First. That the said trustees and their successors in the said trust shall 
permit the said party of the first part, without any hinderance or inter- 
ference by them, so long as she shall remain sole and unmarried, and shall 
see fit so to do, to receive and take in her proper person, or by her agent 
or attorney, the rents, income, dividends, interest, and profits of the said 
trust estate, real and personal, without any accountability therefor, to 
them the said parties of the second part; but if required by her, the said 
party of the first part, so to do, the said trustees and their successors shall 
collect and receive the said rents, income, and profits of the trust estate, 
and shall from time to time pay over the same unto the said party of the 
first part for her own use. 



A CITIZEN OF THE UNITED STATES. 239 

Secondly. That from and after the solemnization of the marriage of the 
said party of the first part, whenever that event may take place, the said 
trustees and their successors shall collect, take, and receive all the rents, 
income, and profits of the trust estate, real and personal, and shall from 
time to time pay over the same to the said party of the first part, to and 
upon her separate order or receipt, made and signed by her, at or about 
the time of such payments respectively and for her proper use, free from 
the control or interference of any husband she may have. 

Thirdly. That at and after the decease of said party of the first part, 
the said trustees and their successors shall be seised and possessed of the 
said trust estate to and for the use of such person or persons as the said 
party of the first part, by any last will and testament, duly executed, if 
she die sole and unmarried; or, in case she be at her decease a married 
woman, by any paper writing signed by her in presence of two or more 
credible witnesses, shall order, and appoint to take, receive, and hold the 
same, and in such shares and manner, and upon such terms and conditions, 
as she shall direct, order, and appoint as aforesaid: and in case the said 
party of the first part shall omit to make any such will or testamentary 
appointment, then the said trustees and their successors shall hold the 
trust estate to the use of such person or persons as by the laws of this 
Commonwealth would, in case the party of the first part had died seised 
and possessed of the then existing trust property in her own right, have 
been entitled to the same as heirs-at-law, or distributees; provided, always, 
that in such case the husband of the said party of the first part, if she 
leave a husband, shall be entitled to his life-estate in all the real estate, as 
if he were tenant by the curtesy in and of the same, and be subject to all 
the duties incident to a tenant by the curtesy. 

Fourthly. That the said trustees and their successors shall keep the said 
trust estate, real and personal, constantly invested in the most safe and 
profitable manner in their power, but relying always on their discretion in 
this behalf; and shall accordingly have power to sell and dispose of any of 
the said trust estate, and to make and pass all necessary deeds and instru- 
ments of conveyance thereof, and to purchase any other estate, real or 
personal, and the same to sell again, and so from time to time to change 
the property composing the trust fund and estate; provided, always, that 
all real and personal estate which may be purchased by them the said 
trustees with the trust moneys, or the proceeds of sale of the trust prop- 
erty, shall be conveyed and assigned to them and their successors as trustees 
as aforesaid, and shall be holden always upon the same trusts, and with 
the same powers, and for the same purposes, as are set forth and declared 
in this indenture of and concerning the estate firstly above described and 
conveyed to the said trustees. 

Fifthly. That the said trustees or their successors, in case the said party 
of the first part shall so order and direct, shall invest the trust money or 
estate, or such part thereof as they shall be ordered as aforesaid, in the 
purchase of such house for the habitation and dwelling of the said party of 
the first part as she may select, and shall lay out and expend such other part 
of the said trust money and estate as she, the said party, shall order and 
direct, in the purchase of such furniture, plate, horses, and equipages as 



240 THE PERSONAL RIGHTS OF 

she may choose and select for her own use; and shall permit her, the said 
party of the first part, with any husband she may have, to occupy and 
inhabit the said house, and to use and enjoy the said furniture, plate, 
carriages, and horses, without impeachment of waste, and without any 
accountability to them the said trustees for the reasonable wear and use 
thereof, or injury by casualty; and the trustees shall keep the said house 
and furniture insured against fire, and, in case of loss or injury by fire, 
shall lay out and expend the money which they may receive from the 
assurers in the repairing or rebuilding of the said house, if so directed by 
the said party of the first part, and in the purchase of other and new furni- 
ture, plate, horses, and equipages, in place of those which have been injured 
or destroyed by fire, and shall permit the said party of the first part to use 
and enjoy the same in manner aforesaid. And the said trustees and their 
successors shall, when required by the said party of the first part so to do, 
sell and dispose of any house which may have been purchased by them for 
the personal occupation and habitation of the said party of the first part, 
and shall in manner aforesaid lay out the proceeds of sale of such house, 
and such other moneys as she shall direct, in the purchase of such other 
house as she shall select and direct them to purchase , and shall permit her 
to occupy the same in manner above set forth and expressed ; and they 
shall also, when directed by the said party of the first part, sell and dispose 
of any of the furniture and other chattels so as aforesaid purchased by 
them for her use, and shall from time to time lay out and expend the pro- 
ceeds of such sales and such other sums of money as they shall be directed 
by the said party of the first part to do, in the purchase of such other fur- 
niture, plate, horses, and equipages as she shall select for her own use; and 
shall permit her to use and enjoy the same in manner aforesaid: provided, 
always, that in case of any attempt by any person to sell or remove the 
said furniture or other chattels out of the personal care and custody of the 
party of the first part, without the consent of the trustees, they shall forth- 
with take possession thereof, and convert the chattels so attempted to be 
removed or sold into money, and shall hold the said money upon the trusts 
and for the uses set forth in this indenture ; and in all the cases in which 
any order or direction shall be given by the said party of the first part, it 
shall be in writing, and be signed by her in presence of one witness" at 
least. 

Sixthly. That in case of the decease of the said trustees, or either of 
them, others shall be nominated by the party of the first part (if she see 
fit so to do), to be appointed as trustees in the place of the deceased; and 
upon such nomination being made and notified to the surviving trustee, he 
shall forthwith, if such person be suitable, make and execute all such 
instruments in the law as shall be needful, in the opinion of counsel, to 
associate such person in the said trust, and to transfer and convey to him 
the same interest in the trust estate, with the same powers over the same, 
and subject to the same duties, as are vested in and assumed by the parties 
of the second part, in and by this instrument and the laws of the land. 
And in case either of the said trustees, the parties of the second part, or 
their successors, shall wish to resign said trust, they shall be at liberty to 



A CITIZEN OF THE UNITED STATES. ( 2Al 

do so, first giving reasonable notice to the party of the first part, that she 
may find some suitable person, -who shall be acceptable to the remaining 
trustee, to assume the said trust in place of the trustee resigning; and the 
same proceedings shall then be had for the introduction and appointment of 
a new trustee as are above provided in case of the decease of a trustee; and 
in case of the decease or resignation at any time of any of the persons who 
may be hereafter appointed trustees, in manner aforesaid, similar proceed- 
ings shall be had for supplying the vacancy created by such decease or 
resignation. And the trust fund, property, and estate shall always be had 
and held by the persons so appointed from time to time in trust for the 
uses and purposes set forth in this indenture, and none other. And all 
nominations made as aforesaid shall be in writing. 

Seventhly. That the purchasers of any estate, real or personal, which 
may be sold and conveyed by the trustees under this indenture, shall not 
be bound to see to the application of the purchase-money; but the receipt 
and acquittance of the trustees shall be a full and adequate discharge to 
such purchasers for such purchase-money. 

Eighthly. That all the expenses and incidental charges of the trustees 
shall be deducted from the income of the trust property, as well as a reason- 
able allowance to the trustees for their own services. 

Ninthly. That the resignation of any trustee shall not be, nor be pleaded 
as, a bar to the chancery jurisdiction of the courts of the Commonwealth, 
in case a resort against such trustee to the said court shall be necessary. 

Tenthly. That the trustees under this indenture, each for himself and 
not for each other, shall be responsible for the want of due diligence only 
in the execution of the said trusts and for their wilful defaults ; and in 
case of the omission by the party of the first part to nominate a successor 
to either of the parties of the second part, or to any person appointed 
instead of them, or either of them who may resign or decease, the surviving 
or continuing trustee shall have power and authority to execute all the 
trusts herein specified and declared, in as ample manner as both the said 
parties of the second part might jointly have done. 

In testimony whereof, The said and hereto 

set their hands and seals, the day and year first above written. 

(Signatures.) (Seals.) 
Signed, sealed, and delivered in presence of 

( Witnesses. ) 

May 18 

Then the within-named acknowledged this instrument to 

be his free act and deed, before me. 

(Signed) Justice of the Peace 



16 



242 THE PERSONAL BIGHTS OF 



(14.) 

ANOTHER FORM OF INDENTURE IN TRUST, FOR PROPERTY OF 
UNMARRIED WOMAN. 

This indenture, Made and concluded this day of 

in the year of our Lord one thousand eight hundred and by and 

between of in the county of single woman, 

of the one part, and of said the father of the said 

of the other part: Witnesseth, 

Whereas the said is seised and possessed in her own right, 

as tenant in common, of one undivided fifth part of the following described 
real estate: 

and is also seised and possessed of and in one undivided fifth part of a 
certain piece of land, situate on Street in said with 

the buildings thereon standing, and privileges and appurtenances thereto 
belonging ; the whole of which were conveyed by to 

by deed bearing date the twenty-eighth of in the year of our 

Lord one thousand eight hundred and recorded in the Registry 

of Deeds for said county, lib. fol. also of and in 

one undivided fifth of one undivided fortieth part of thirty acres of land 
situate in said which was conveyed to by 

by deed bearing date the eighteenth day of in the year of our 

Lord eighteen hundred and recorded with Suffolk deeds, lib. 

fol. And whereas the said is possessed of the 

following personal estate : to wit, of eighteen thousand dollars in the capital 
stock or shares of the Bank in said as appears by 

a certificate thereof, and is also possessed of the promissory note 

of said for the sum of fifteen hundred dollars, dated the ninth 

day of last, and payable by instalments of five hundred dollars 

in one, two, and three years therefrom; and of another promissory note of 
said for five hundred dollars, dated the seventeenth day of 

last, and payable in one year therefrom; and also of the bond 
of and dated the seventh day of in the 

year of our Lord one thousand eight hundred and conditioned 

for the payment of five hundred dollars and interest, and of the principal 
of which there has been paid one hundred and fifty dollars, and all the 
interest up to the seventh day of last. And whereas she, the 

said is desirous of securing the said estate, both real and 

personal, in the event of her marriage, to her sole use and benefit; and for 
this purpose it hath been agreed, that all the estate and property afore- 
said shall be granted, assigned, and transferred unto the said 
and to such other trustee as shall hereafter be appointed according to the 
provisions hereinafter expressed, to be held in trust by them for the sep- 
arate and sole use and benefit of her, the said and her heirs 
(notwithstanding any such coverture) , upon the terms and conditions, for 
the uses, intents, and purposes, under the limitations, and for and during 
the time, as hereinafter is expressed. 



A CITIZEN OF THE UNITED STATES. 243 



Now, this indenture witnesseth, that the said _ in considera- 

tion of the premises, and of the covenants hereinafter contained, and also 
of one dollar now paid to her by the said the receipt whereof 

is hereby acknowledged, hath granted, bargained, sold, and transferred, 
and by these presents doth grant, bargain, sell, and transfer, unto the 
said his heirs and assigns, for ever, all the real and personal 

estate, stocks, notes, and bond, hereinbefore described and specified: 

To have and to hold the same to him, the said his heirs 

and assigns, for ever, to and for the several uses, trusts, and purposes, and 
subject to the several provisions, limitations, powers, and agreements, 
hereinafter limited, declared, and expressed; that is to say, to the sole use 
and behoof of the said and her heirs until the solemnization of 

any such marriage, and, from and immediately afterwards, to and for the 
following uses, intents, and purposes: to wit, 

That the said estate, both real and personal, stocks, notes, and bond, 
shall be held, during the natural life of the said by him, the 

said and by such other trustee as shall be appointed for that 

purpose in the manner hereinafter expressed and provided, to the sole use 
and separate benefit of her, the said without being liable to 

the debts, incumbrances, or control of any husband she may have during 
the existence and continuance of said trust : that said . shall, 

from time to time, lease and demise said real estate to the best profit and 
advantage; and, at such time as he shall see fit and think proper, sell and 
dispose of all or any part of said real estate, upon the most advantageous 
terms, for the interest of said and shall invest the proceeds 

thereof in the safest and most productive funds; and, upon payment of the 
capital stocks, notes, or bond aforesaid, invest the same in like manner: 
that he shall pay all the rents and profits of said real estate while unsold, 
and the clear interest and income of said funds, and also the clear interest 
and income of said personal property hereby assigned, and all the net 
profits arising and accruing therefrom, as well as such portion of the prin- 
cipal as he shall judge necessary for her convenience and support, unto 
her, the said or to such person or persons as she shall in writ- 

ing, without the signature or interference of any husband, appoint, for and 
during the natural life of her, the said that is to say, for and 

during the term for which said trust shall continue, according 

to the provisions and limitations hereinafter expressed; and, after the 
decease of the said the remaining income and profit unpaid, 

to the child or children of the said if she shall leave any; and, 

upon such decease, grant, convey, and transfer the same estate, both real 
and personal, and any investments in funds, unto such child or children, 
his and their heirs and assigns, for ever; and also grant and convey, in like 
manner, any real estate which may be purchased with the proceeds of said 
property: and, in case the said should die without issue, then 

to grant, convey, and transfer the same, in like manner, unto the heirs-at- 
law of her the said * 

And the said for himself, his heirs, executors, and admin 

istrators, doth covenant, grant, and agree, to and with the said 
her executors and administrators, that in case she, the said 



244 THE PERSONAL RIGHTS OF 

should desire any real estate to be purchased with any part of said capital 
stock, funds, or interest, of the estate and property hereby conveyed, and 
it should be deemed advantageous and proper by the said to 

comply therewith, then he will make a purchase thereof, and take deeds of 
conveyance of such estate in his own name, and will hold the same subject 
to the like trusts, limitations, powers, and agreements as are herein limited, 
declared, and expressed; and will pay over the rents and income thereof as 
is above provided, unless she, the said shall choose to occupy 

and live on the same; and, in such case, no rents shall be exacted or 
required of any husband of the said And in case of mental 

infirmity, or any other incapacity, which shall, in the opinion of the judge 
of probate for the county of for the time being, prevent a 

suitable execution of the aforesaid trusts by him, the said he 

does also covenant as aforesaid to grant, sell, and transfer the aforesaid 
estate and property, both real and personal, which shall then remain in his 
possession and under his control, and such other as he may have purchased 
in pursuance of the trusts aforesaid, unto any trustee who shall be ap- 
pointed by the said judge of probate for the time being (who, on the hap- 
pening of such infirmity or other incapacity, is hereby authorized to make 
such appointment) ; to have and to hold the same to such trustee, subject 
to the several provisions, limitations, powers, and agreements, and upon 
the same intent, uses, and trusts, in like manner as held by him, said 
And upon the happening of the death of him the said 
he doth further covenant that his heirs or executors or ad- 
ministrators shall and will, as soon as practicable thereafter, make good 
and sufficient instruments of conveyance to transfer and grant the afore- 
said estate, both real and personal, or such parts thereof as shall then 
remain undisposed of, and such as may be purchased by him, said 
in pursuance of the trusts and intent of this indenture, unto such person 
as shall be appointed the trustee of the said for that purpose by 

the said judge of probate for the time being; who is, in that event, 
authorized to make the appointment. And the said doth also 

further covenant as aforesaid, that upon the death of the said 
if he shall then be her trustee under the provisions of this indenture, he 
will grant, transfer, and assign all and singular the estate and property, 
both real and personal, which he may then hold under the grant and trusts 
aforesaid, unto the child or children of her, the said if she 

shall leave any. But no grant and conveyance, as is above provided, shall 
be made unto any such trustee until he shall have given bond, with suffi- 
cient sureties, to the judge of probate for said county for the time being, 
for the benefit of the said and her heirs, upon condition that 

he, the said trustee, his heirs, executors, or administrators, shall hold the 
said estate and property, to be granted and transferred, subject to all the 
limitations, provisions, powers, and agreements, and for the several uses, 
purposes, and trusts, in this indenture limited, declared, and expressed; 
and upon the condition that he shall at all times well and truly observe, 
fulfil, and perform the same. 

And the said trustee so appointed shall thereupon have all the powers, 
and be bound to perform all the duties, enjoined upon and required by this 
indenture, of him, the said 



A CITIZEN OF THE UNITED STATES. 245 

In witness whereof, The said parties have hereto interchangeably 
set their hands and seals, the day and year first above written. 

(Signatures.) ' (Seals.) 
Signed, sealed, and delivered in presence of 
( Witnesses.) 

ss. 30th September, a.d. 18 

Then personally appeared the above-named and 

and severally acknowledged this indenture to be their free act and deed. 

(Signature.) Justice of the Peace. 



DIVORCE. 

Divorce may be of two kinds : divorce from the bond of matri- 
mony, often called by the Latin law phrase a vinculo matrimonii ; 
and divorce from board and bed, or a mensa et thoro. A divorce a 
vinculo annuls the marriage altogether, and restores the parties to 
all the rights of unmarried persons, and relieves them from all the 
liabilities which grew out of the marriage, except so far as may be 
provided by statute, or made a part of the decree of divorce by the 
courts. Thus it is a provision of some of our State statutes that the 
guilty party shall not marry again. And the court generally have 
power to decree terms of separation, as to alimony (which means 
the continued support of the former wife by the husband), care 
and possession of children, and the like ; and this decree is subject 
to subsequent modification. 

A divorce a mensa et thoro separates the parties, but leaves 
them still married. Generally, a woman divorced from the board 
and bed of her husband acquires the rights and powers, as to prop- 
erty, business, and contracts, of an unmarried woman; and her 
husband is freed from his general obligation to maintain her, the 
courts having power, which they usually exercise, of decreeing 
such alimony or maintenance from the husband as his means and 
the character and circumstances of the case render proper. 

In England, when our forefathers came over, and, indeed, until 
1857, there could be no divorce a vinculo, except by an act of Par- 
liament, the courts having no power to grant such a divorce; now, 
however, there is in England a court authorized to grant this divorce. 
The New England colonists brought English law with them ; but, as 
we learn from Mather's Magnalia, very early in the settlement of New 
England the question was put to the clergy, whether adultery was 
a sufficient cause for a divorce. They answered that it was. The 
courts of law thereafter decreed divorce a vinculo in such cases ; 
and this law and practice became universal in this country. For 



246 THE PERSONAL RIGHTS OF 

. . ■ € 

many years, however, a divorce a vinculo was granted for no other 
cause than adultery, the law being made to conform to what was 
regarded as the positive requirement of Scripture. And a divorce a 
mensa et thoro was granted for other sufficient causes. Gradually the 
severity of the rule as to divorce a vinculo was modified, and this di- 
vorce was permitted for the causes for which divorce a mensa et thoro 
had been formerly granted. These are mainly desertion, cruelty, and 
a sentence to long imprisonment. The law and practice in this 
matter differs somewhat in the different States, being precisely alike 
in no two of them. In some of them the facility of obtaining a 
divorce from the bond of matrimony has certainly been carried 
quite far enough. 

In nearly if not quite all the States desertion for a longer or 
shorter period, sometimes called abandonment, is a ground of 
divorce. Three years is a common period. Mere absence is not 
enough, as the desertion must be wilful. In California it is held 
that absence for a sufficient period implies desertion, unless it be 
explained. Generally there must be positive proof of the intention 
to desert. Hence it has been sometimes held that an agreement to 
separate, either express or inferrible from conduct or language, pre- 
vents a decree of divorce. So would conduct which would natu- 
rally lead to a separation. But if after such agreement to separate 
there is an honest desire on either part for a restoration of conj ugal 
relations, and the desire is properly expressed and manifested, and 
is denied or refused by the other party, the earlier consent to sep- 
aration does not bar or prevent the divorce. A refusal to accom- 
pany the husband in a change of residence, if the refusal were made 
for good reasons, would bar him from obtaining a divorce on account 
of separation. But if the refusal were not reasonable, it would be 
a desertion. 

As to the cruelty for which the divorce would be granted, while 
it seems to be generally held that it must be a cruelty which 
injuriously affects " life, or limb, or health," it is also held that this 
may be by any treatment, or even by mere words, which are such 
as may harm the health. In practice, the courts use proper precau- 
tions to prevent a divorce from being obtained by connivance or 
collusion ; and it will not be granted merely upon the consent or 
the absence of defence of the party charged, but only on proof 
of the facts for which the divorce is prayed for. Nor will it be 
granted if there has been a condonation by the petitioning party. 
The general meaning of condonation, as an English word, is for- 
giveness, but it has, as a law term, and used in this connection, a 
technical meaning; it is, forgiveness proved by the continued co- 
habitation of the parties after the guilt of the defendant is made 



A CITIZEN OF THE UNITED STATES. 247 

known to the petitioner. It would seem only just to apply this 
rule with much less severity to the wife, who may be constrained 
for many reasons to continue for a time with the guilty husband ; 
whereas a husband is under no such necessity, and should renounce 
all cohabitation with a wife whom he knew to be an adulteress ; 
and it is well settled that a disregard of this requirement would bar 
his application for divorce. 



BOOK THIRD. 

THE PROPERTY RIGHTS OF A CITIZEN OF THE 
UNITED STATES: 

HOW TO EXERCISE AND HOW TO PRESERVE THEM. 



BOOK THIRD. 

THE PROPERTY RIGHTS OF A CITIZEN OF 
THE UNITED STATES. 



CHAPTER I. 
EMINENT DOMAIN". 

In this country all property is held subject to the right of 
eminent domain. This is the name given in law to the right of 
the sovereign to take private property for public purposes. This 
right belongs in this country, first, to the United States; and, secondly, 
to each State : but the right of each State is confined to property 
within its boundaries. To this right there are but two limitations, 
but they are very important. One of these is, that the property 
must be taken for public purposes; the second is, that full and 
adequate compensation must be made for the property so taken. 
Both of these conditions are essential, and only when both exist 
together can private property be lawfully taken. It follows, there- 
fore, that if there be no public necessity there is no public right ; 
and that if property be taken by the sovereign without such neces- 
sity, as there is no public right, land taken by the sovereign, where 
no such necessity exists, is unlawfully taken, although full and ade- 
quate compensation be made. And, on the other hand, if land be 
taken by the sovereign because of such necessity, and for public 
purposes, it is unlawfully taken, unless full and adequate compensa- 
tion be made. 

It is not, however, necessary that this compensation should be 
given at once when the land is taken ; it is enough if the law pro- 
vides the means by which the owner of the land may be sure of 
obtaining compensation : and it has been well said, that it must be 
as absolutely certain that the compensation will be adequate, and 
will be received, as that the land is taken. In all our States there 
are statutory provisions on the subject, by force of which the value 
of the property taken is ascertained by commissioners or a jury, 
under the direction of the court, and payment made. 



252 THE PROPERTY RIGHTS OP 

It should be said, however, that this right to compensation is 
confined to him whose property is taken, and does not extend to 
him who is indirectly damaged by the taking or the use of another's 
property. As, for example, if the legislature of a State, by the exer- 
cise of its right of eminent domain, gives to a railroad company 
the right to take and nse certain land for the construction of its 
road, the owner of the land must be compensated. But if the owner 
of a mill near by is injured by the diversion of his mill-stream from 
its former course by what the railroad company does, he cannot 
demand compensation. 

By far the most frequent exercise of the right of eminent 
domain is by the legislature of a State granting to a road, or rail- 
road, or bridge company, the right to take land for. their purposes; 
these being deemed public purposes,- although resulting in profit to 
individuals. 



CHAPTER II. 
THE ACQUISITION OF PEOPERTY. 

Property may be acquired in either of six ways. 

First, by inheritance. This takes place when a man or woman 
possessed of property dies intestate (or without a will) ; then the 
heirs or next of kin take it, in the proportion which the law points 
out. If it be personal property, — that is to say, not land, or some- 
thing affixed to the land, — they take it through the instrumentality 
of administration. 

Second, by will. When a person possessed of property makes 
a will, those to whom he devises or bequeaths his property (" devise " 
being applied to real estate, and " bequeath " to personal estate) take 
it either from the executor appointed by the will, or, if there be no 
executor, by an administrator, with the will annexed. 

Third, by purchase and sale. 

Fourth, by hiring. 

Fifth, by gift. 

Sixth, by finding. 

Each of these will now be considered in its turn. 



A CITIZEN OF THE UNITED STATES. 253 



CHAPTER III. 

THE DISTRIBUTION OF THE PROPERTY 
OF AN INTESTATE. 

If a person dies without a will, and possessed of real property, 
his heirs take it, under the laws of the several States which provide 
for this matter, and they are called statutes of descent or of inheri- 
tance. The great difference between the law of this country on this 
subject and the law of England, being what is termed the right of 
primogeniture, which prevails there and not here. By this right the 
eldest son takes all the land of an intestate. In this country the 
land is equally divided among all the heirs, and it is the business of 
the statutes above mentioned to determine who they are, and what 
proportions they take. These statutes differ somewhat in the dif. 
ferent States, but are substantially alike, and may be said to provide, 
generally, in the following manner: — 

First. If the deceased leaves children, his real property goes to 
them, and to the issue of any deceased child by right of represen- 
tation, in equal shares. The meaning of taking by representation is 
this : the issue of a deceased child take his or her parent's share 
only ; thus, if a man dies leaving three children living, and had a 
fourth child who is dead, and who left four children who are living, 
the property will be divided into four equal parts, one of which each 
child takes, and the four children of the deceased child divide among 
them the remaining part, each one of them getting a sixteenth of 
the whole. By " issue " is meant all lawful lineal descendants. 

Second. If the intestate leaves no living child, then the property 
goes to all his other issue or lineal descendants. If all these 
descendants are of the same degree of kindred to the intestate, 
— that is, all grandchildren or great-grandchildren, — they share 
the property among them equally; but if they are in different 
degrees of kindred, — as, if some were grandchildren and others 
great-grandchildren, or still further off, — they take by the right 
of representation ; that is, the estate is divided into as many shares 
as there are grandchildren and deceased children leaving issue, and 
the great-grandchildren take the share which would have come to 
their deceased parent. 

Third. If the intestate leaves no issue, then the real property 
goes to his father. 



254 THE PROPERTY RIGHTS OB 

Fourth. If he leaves neither issue nor father, then it goes 
in equal shares to his mother, brothers and sisters, and to the 
children of any deceased brother or sister by a right of represen- 
tation. 

Fifth. If he leaves no issue, no father, no brother nor sister, 
living at his death, and no issue of a deceased brother or sister, 
then it all goes to his mother. In some States it all goes to his 
mother, if there be no issue, nor father, nor brother, nor sister 
of the intestate, and the issue of a deceased brother or sister takes 
nothing. 

Sixth. If he leaves no issue, and no father, mother, brother, 
nor sister, then the estate goes to the next of kin who stand in an 
equal degree of nearness to him. 

Seventh. The statutes of descent usually contain various minute 
provisions for possible circumstances ; but of these we do not think 
it necessary to speak. If the intestate leaves a widow and no kin- 
dred, in some States his whole estate goes to his widow; and if the 
intestate be a married woman and leaves no kindred, her estate 
goes to her husband. 

Eighth. If the intestate he a woman, whether married or un- 
married, her real estate goes as above stated, excepting that the 
husband, if a child had been born to them who might have inherited 
the estate, takes the use, rents, and profits of real estate for his life. 
He is said in law to hold the estate as a "tenant by the curtesy." 

Kmth. If the intestate leaves no widow or husband, and no kin- 
dred, his or her estate shall escheat (or go) to the Commonwealth. 

THE DISTRIBUTION OF PERSONAL ESTATE. 

This is regulated in the several States by what are called the 

statutes of administration. Generally the real property of an intes- 
tate goes at once to those who are heirs by law. The personal 
property all goes to an administrator upon the estate, and by him is 
distributed as the law directs. This distribution of personal estate was 
once a very different thing from the distribution of the real estate ; 
but now it is distributed in much the same way, and is governed 
by the same rules, as above stated, for the inheritance of real prop- 
erty. The principal differences are these : A widow is entitled to 
her dower of the real property ; that is to say, she has for her life 
one-third part thereof, and the use, income, or rents thereof. But of 
the personal estate there is no dower: instead thereof the widow 
takes in full property one-third part of the personal estate ; and if 
there be no issue, the widow takes generally one-half, and in some 
States the whole. 



A CITIZEN OF THE UNITED STATES. 255 

If the intestate was a married woman leaving issue, in many 
of the States her personal property goes to them ; in others of the 
States it goes to her husband, the issue not taking. 

If the husband dies leaving a widow and no issue, she takes 
generally one-half of the personal estate. Of late years the property 
relations of husband and wife have been much changed in different 
States ; and we refer to our former chapter on the subject of Husband 
and Wife for a succinct account of them. 



CHAPTER IV. 

OF THE DISPOSAL OF PROPEKTY BY 

WILL. 

SECTION I. 
OF WILLS. 

Few persons are aware how difficult it is to make an unob- 
jectionable will. There is nothing one can do, in reference to 
which it is more certain that he needs legal advice, and that of a 
trustworthy kind. Eminent lawyers, not practised in this peculiar 
branch of the law, have often failed in making their own wills, both 
in England and in this country ; and there are seldom blank forms 
for wills printed and sold, as there are for deeds and leases. Never- 
theless, it may happen that one is called upon to make his own will, 
or a will for his neighbor, under circumstances which do not admit 
of delay; or he may have some interest in the will of a deceased 
person, and questions may have arisen, which some knowledge of 
legal principles will answer. We shall try to state here what may 
be of use in such cases ; and shall append forms for a will. 

Any person of sound mind and proper age may make a will. A 
married woman cannot, unless in relation to trust property, whereof 
the trust or marriage settlement reserves to her this power, unless 
the statute law of her State gives it, which is the case now in many 
States. 

One must he of full age in order to devise real estate. But in 
most of our States minors may bequeath personal property ; and a 
frequent limitation of the age for such bequest is eighteen years for 
males, and sixteen years for females. 

The testator should say distinctly, in the beginning of the 
instrument, that it is his last will. If he has made other wills, it is 



256 THE PROPERTY RIGHTS OF 

usual and well to say, " hereby revoking all former wills," but the law 
gives effect to a last will always. 

It should close with the words of attestation : " In witness 
whereof, I have hereunto signed and sealed this instrument, and 
published and declared the same as and for my last will, at 
on this day of ." Then should follow the 

signature and seal ; for this latter, although not always required by 
law, is usually and properly affixed. 

The witnessing part is very material. The requirements in 
the different States are not precisely alike ; but they are all intended 
to secure such attestation as will leave the fact of the execution of 
the will, and its publication as such, beyond doubt. In a very few 
States, it is enough if the signature be proved by credible witnesses, 
although there be no witnesses who subscribe their names to the 
will. In many, two subscribing witnesses are enough. But in some 
it is necessary, and in all I recommend, that the testator should ask 
three disinterested persons to witness his will; and should then, in 
their presence, sign and seal it, and declare it to be his will; and 
they should then, each in the presence of the testator and of the 
other witnesses, sign his name as witness. 

Each should see the execution which he says he witnesses; 
and the signing by the witnesses should all be seen by the testator ; 
but the law is satisfied if the thing is done near the testator, and 
where he can see if he chooses to look. If the testator is too feeble 
to write his name, let him make his mark ; and for this purpose any 
mark is enough, although a cross is commonly made; or he may 
sign the will by an attorney or agent whom he duly authorizes to 
do this. If a witness cannot write his name, he may make his mark ; 
but this should be avoided, if possible. 

Over the witnesses' names should he written their attestation ; 
and any alteration in the will should be noticed. If the attesta- 
tion be in the following words, it will be safe in any part of this 
country : — 

"At on this day of the above- 

named signed and sealed this instrument, and published and 

declared the same as and for his last will; and we, in his presence and at 
his request, and in the presence of each other, have hereunto subscribed 
our names as witnesses." 

Witnesses should be selected with care, where that is possible ; 
for if any question arises about the testator's sanity, or any thing of 
the kind, their evidence is first to be taken, and is very important. 
But any persons competent to do ordinary acts of business may be 
witnesses. Nor do the usual disqualifications for business apply. 



A CITIZEN OF THE UNITED STATES. <zbl 

Thus, married women and minors may be witnesses of wills. But 
no person should be called upon to witness a will who is a legatee, 
or an executor, or otherwise interested in the will. If such a person 
were a witness, it might not avoid the will ; but a legatee would 
lose or be obliged to renounce his legacy ; and, generally, it might 
lead to unintended results. What is said in the next chapter in 
relation to deeds, of witnesses remembering, <fcc, or proof of hand- 
writing in case of their death or absence, is true also of wills. 

As to the body of the will, the testator must express his wishes 
as clearly and accurately as possible ; and, unless he has good legal 
advice, he should make the disposition of his property as simple as 
possible. 

The word "bequeath" applies properly to personal estate only; 
the word " devise " to real estate only. It is safe enough to begin, 
" I give, bequeath, and devise my estate and property, as follows : 
that is to say," — and then go on and tell what shall be done with 
this and that piece of property or sum of money. 

Words of inheritance should be added to any devise of land (if 
not intended for the life of the devisee only), as was said in refer- 
ence to deeds ; although they are not required in wills so perempto- 
rily as in deeds. The words of inheritance are, " and his heirs." 
These words should follow the name of the devisee, or person to 
whom the land is devised. 

If it is intended, as usually is the case, that the will should 
apply to all the real estate possessed by the testator at the time of 
his death, although purchased after the will is made, there should 
be a clause expressing this intention. 

If children are not provided for in a will, the law presumes 
in some States that they were forgotten, and gives to any such child the 
same share as if there were no will, unless the omission is explained in 
the will or by evidence, in such wise as to show that it was inten- 
tional. The same rule applies quite generally to the issue of a 
deceased child. If the child were provided for in the lifetime of 
the father, the law, generally, might not presume that he was for- 
gotten ; it is best, however, to guard against any question of the 
kind, by naming the children, and giving them a small sum, or say- 
ing that the omission to give them any thing is intentional. 

A testator should always name his executors ; but the will is 
perfectly good without any executor being named, for the Court of 
Probate will appoint an " administrator with the will annexed." 

17 



258 THE PROPERTY RIGHTS OF 



SECTION II. 
CODICILS. 

A codicil is a little additional will. That is, it is a testamen- 
tary disposition, not revoking the former will, but varying it in some 
way, or making changes in it. There can be but one will in force, 
and that the last ; but there may be any number of codicils, all valid. 
The changes made by a codicil in a will, or in former codicils, should 
be very distinctly stated ; and some words like these should be used : 
" I hereby expressly confirm my former will, dated 
excepting so far as the disposition of my property is changed by this 
codicil." And the codicil should be called, at the beginning and 
in the in testimonium clause, a codicil, and be executed and 
witnessed in the same manner as a will. 

If a codicil gives one a legacy, who has already one by the will, 
the codicil should state whether it gives the second legacy instead 
of the first, or in addition to it. And if advances are made to a 
child during life, there should be an indorsement on the will (but a 
statement in the will or codicil would be better), stating whether 
these advances are to be charged to him, and if so, in what way, 
whether with interest, &c. 



SECTION in. 
REVOCATION OF WILLS. 

The law concerning the revocation of a will is quite nice ana 
technical. A codicil, we have seen, does not revoke, and a new will 
does. So might tearing off the name of the testator ; but then the 
question might come, Who tore it off? It is best to leave neither 
this nor any other question ; and therefore to destroy a will which 
it is intended to revoke. If the will is out of the testator's reach and 
power, and so cannot be destroyed, it would be best to make a new 
will, revoking the old one ; which any testator can always do. 

A will is revoked by the operation of law, if the testator after- 
wards marry and have a child. If the testator, after this, intends 
that his will shall take effect, he should expressly confirm it ; and 
the best way to do this would be by making a new will. If he 
leaves any thing to his wife, and intends that she should have it 
instead of dower, or of the additional rights which recent statutes 
in some of the States have given her, he should say so. And then 
she will not have both, but may choose between the provision of th« 



A CITIZEN OF THE UNITED STATES. 259 

law and that of the will, taking whichever she prefers, and leaving 
the other. 

For the rights of the wife or widow in the several States, I 
refer to the abstract of the statutes of the several States, in the 
chapter on Married Women. 

We will give such forms and rules as will he applicable to all 
wills, and enable any person to draw a simple will with safety. No 
one can express accurately provisions for trust estates, remainders, 
executory devises, &c, without knowing the law on these subjects, 
and this is an extensive and difficult department of the law. All 
that is necessary, and may be relied upon as generally sufficient, is 
as follows : — 

(15.) 

FORM OF A WILL. 

I, of (place and occupation), make this my last will. 1 

give, devise, and bequeath my estate and property, real and personal, as fol- 
lows, that is to say : — 

Then follow all the provisions and disposition of property which 

the testator intends, stated fully, plainly, and as accurately as pos- 
sible, paying due regard to the rules and principles already stated 
on this subject. And if these provisions are carefully presented in 
distinct and intelligible language, the courts will generally supply 
whatever of technicality is wanting. Then follows, first, the appoint- 
ment of an executor, and then the execution of the will, and finally 
the declaration of the witnesses, thus : — 

I appoint (name, residence, and occupation) executor (or executors, if more 
than one be desired) of this my will. 

In witness whereof, I have signed and sealed and published and declared 
this instrument as my will, at (place), on (date). 

(Signature.) (Seal). 

The said at said (place) , on said (day) , signed and sealed 

this instrument, and published and declared the same as and for his last 
will. And we, at his request and in his presence, and in the presence of 
each other, have hereunto written our names as subscribing witnesses. 

(Here follow the names of three witnesses.) 

A codicil should be written thus : — 

I, of (place and occupation), do make this my codicil, 

hereby confirming my last will made on the (date of the will) , and all my for- 
mer codicils (if there be any) , so far as this codicil is consistent therewith 
and do hereby — 



260 THE PROPERTY RIGHTS OF 

Then follows whatever disposition the testator chooses to make, 

stating and describing it as he would if it were a will, and execut- 
ing it and having it attested in the same manner as if it were a will, 
excepting that instead of calling it a will, wherever that word occurs, 
he says " codicil " instead of " will." 

We add to this two forms of wills, hoth of which were drawn 
by skilful lawyers, and disposed of large estates. 

(16.) 

Be it remembered, That I, of the city of in the 

State of Esquire, do make this my last will and testament, in 

manner following. That is to say, — 

I order and direct that all my just debts shall be paid with convenient 
speed. 

I give unto Mr. of said city, merchant, the amount of mon- 

eys due and owing from him to me, according to the tenor and effect of 
four promissory notes signed by him, viz.: one dated October 16, 1819, 
for ninety-six hundred and eighty dollars ; one dated August 9, 1822, for 
five thousand dollars; another dated August 9, 1822, for forty-five hun- 
dred and fifty-eight T 8 ^ dollars ; and another dated August 15, 1822, for 
fifty-six hundred dollars : and I order said four notes to be cancelled. 

To the wife of said I give an annuity of six hundred 

dollars, to be paid her in two equal and half-yearly payments of three hun- 
dred dollars each. 

It is my will, and I order and direct that a trust fund of ten thousand 
dollars shall be raised out of my estate and invested at interest, the income 
and produce of which trust fund I give unto of 

single woman, to be paid to her half-yearly, during her natural life. And 
at the decease of the said the principal sum or trust fund 

shall be paid to and among such person and persons in such shares and 
portions as she, the said by any writing by her signed in the pres- 

ence of two or more credible witnesses, shall give, direct, and appoint. 
And in default of such appointment, then said trust fund, or principal 
sum, shall go, as the residue of my estate, to the residuary legatee herein- 
after named. 

I also direct that another trust fund of ten thousand dollars shall be 
raised out of my estate and invested at interest. And I give the interest 
and produce of this trust fund, when and as it accrues, unto 
the wife of It is my will that the income of this fund, or 

principal sum shall, during the natural life of said either be 

paid into her proper hand, or upon her order or receipt, signed by her 
alone, notwithstanding her coverture. And I declare that neither the 
principal nor income of this fund shall be subject to the control, debts, or 
engagements of the present or any future husband of said the 

same being intended for her sole and separate use. 

At the decease of said I give said principal sum or trust 

fund to the issue of said and in default thereof to such 



A CITIZEN OF THE UNITED STATES. 261 

other person or persons as she, by a last will, or any writing in the nature 
of a last will, shall give, direct, or appoint the same ; and in default of 
such appointment, it is my will that said trust fund or principal sum 
shall be disposed of and pass as part of the residue of my estate. 

I give to an annuity of three hundred dollars, to be paid 

by two equal sums to said half-yearly, during her natural 

life. 

To of in the county of widow, I give 

an annuity of one hundred dollars, to be paid her, during life, in quarter- 
yearly payments. 

I also give unto of in the county of 

widow, an annuity of two hundred dollars, to be paid in quarter-yearly 
payments during her life. 

I order my executor, hereinafter named, to pay of 

either in money, or such articles as his comfortable maintenance may re- 
quire, fifty dollars annually during his life, at such times as said executor 
shall think proper. 

To wife of of I give an annuity 

of one hundred dollars, to be paid during her life quarterly. 

To wife of of I give three hundred 

dollars, and direct three notes, held by me, signed by her husband, for one 
hundred dollars each, to be cancelled. 

To wife of of there shall be paid in 

money, or delivered in articles necessary for her support, at the discretion 
of the executor of this my will, one hundred and fifty dollars annually, 
during her life, at such time and in such portions as he shall choose. 

I give to son of one thousand dollars, and 

order that he shall be charged with such amount of moneys as he shall be 
my debtor for, upon promissory notes, at my decease. 

I devise the wood- lot in which I bought of one 

to wife of above named, to hold to her for life, 

the remainder I give to the child or children of said who 

shall survive her, his, her, or their heirs for ever. 

If shall be a member of my family at the time of my 

decease, she shall and may continue to reside in my dwelling-house and 
participate in the use of the stores and furniture, in common with others 
of my family, for the term of six months thereafter. 

It is my will that a debt of three hundred and thirty-two dollars, due 
me from of shall be cancelled. 

To each of those of the following named persons, who shall be in my 
service at the time of my decease, I give one hundred dollars, viz. : 



My will is that all annuities hereinbefore given shall take date from 
the day of the probate of this will; and all legacies, not annuities, shall 
be paid within eight months from the same period. 

It is my will that all the capital or principal sums which shall be 
requisite to yield the several annuities above mentioned may, by my exec- 
utor, be paid to to be held and managed by said corporation, 



262 THE PROPERTY RIGHTS OF 

as trustees under this will: or, if the said executor and the parties bene- 
ficially interested therein shall so elect, said capital or principal sums, or 
any of them, may be placed in the hands of such trustee or trustees as 
shall, upon application to the Supreme Court of sitting in chan- 

cery, be appointed to receive the same, and perform this, my will, in that 
behalf. 

I hereby authorize and empower whoever shall assume the execution of 
this will, to make sale of, and convey any parcel or parcels of real estate, 
of which I may die seised, for the purpose of raising any and all such sums 
of money as shall be required for the trust funds, annuities, and legacies 
hereinbefore directed to be created, given, and bequeathed. All such 
sales shall be made by public vendue, after notice thereof shall have been 
given in two or more newspapers printed in the city of for 

the term of fourteen days at least prior to such sales being made. 

All the residue of my estate, real, personal, and mixed, wheresoever it 
may be found, and of whatsoever it may consist, I give and devise unto 
to hold to him and his heirs for ever. 

I hereby revoke all wills by me heretofore made, and constitute the 
said executor of this my last will. 

In witness whereof, I, the above-named testator, have hereunto set 
my hand and seal, this twenty-sixth day of in the year of our 

Lord eighteen hundred and 

[L. S.] 

Then and there signed, sealed, and published by the tes- 

tator, as and for his last will, in the presence of us, who, at his request, 
in his presence, and in presence of each other, have hereto set our names 
as witnesses. 

(17.) 

Be it remembered, That I of in the county 

of and State of Esquire, hereby revoking all former 

wills by me made, do make this my last will and testament, in manner 
following. That is to say, — 

I direct that my just debts be paid with all convenient speed. 

To my wife I give and bequeath my library; my horses and 

carriages; my family stores; all my household furniture wherever found, 
excepting my silver plate; all my pictures; and also the sum of two thou- 
sand dollars, which shall be paid to my said wife within sixty days from 
the probate of this will. 

It is my will that the debt due to me from and the interest 

due and to become due thereof, be suffered to remain unpaid, until her 
marriage or death (whichever event shall first happen), provided she shall, 
from time to time, so acknowledge said debt, that the same shall not be 
affected by the lapse of time, or the " Statutes of Limitation;" and pro- 
vided, also, that she shall consent that the interest accruing on said debt be 
computed by annual rests. 

All the rest, residue, and remainder of my estate, real, personal, and 
mixed, I give, devise, and bequeath unto and all 



A CITIZEN OF THE UNITED STATES. 263 

of the city of their successors and assigns, and the survivor of 

them, his heirs and assigns, for ever ; but in trust, nevertheless, for the 
performance of this my will concerning the same. That is to say, — 

1st. To deliver and transfer to my daughter when she shall 

attain the age of twenty-one years, my tea-set of chased silver, gilt, and 
my set of gilt teaspoons; and in case my said daughter shall die during her 
minority, then said tea-set and spoons shall be given to my son 
when he attains majority; but in case of his death before that period, the 
said tea-set and spoons shall, at the decease of the survivor of them, the 
said and be given to the eldest of my other children 

who shall then be living, and shall attain the age of twenty-one years. 
But it is my will that my said wife shall be allowed to use said tea-set and 
spoons until such event shall happen, if she shall so long remain my widow. 

2d. To permit my said wife to use all my other silver plate during her 
widowhood; and on her death or marriage, whichever shall first happen, 
to divide the same among my children who shall then be living. 

"3d. To pay over the interest and income which, prior to the fifth day 
of May that will be in the year eighteen hundred and fifty-six, shall be 
declared on the seventeen shares in the Bank, which now stand 

in the name of my former wife, to of to 

be by him appropriated to the support of and sisters of 

my said former wife in such shares and proportions as he may 

think expedient. And in case of the decease of said then such 

appropriation shall be made by the trustees acting for the time being under 
this will; provided, however, that if said trustees shall think it expedient 
to apply said interest and income towards the support and maintenance of 
my said daughter they shall appropriate the same to that object 

in preference to the purposes before mentioned. 

4th. To transfer and convey said shares on said fifth day of May that 
will be in the year eighteen hundred and fifty-six, to my said daughter 
or to her issue in case of her decease. If neither my said 
daughter nor her issue shall then be living, then said shares shall go to, 
and be divided among, the heirs of my said former wife, in such shares 
and proportions as said trustees shall, with the concurrence of said 
(if living), think expedient and proper ; or the same may be 
transferred to trustees for the benefit of said heirs. 

5th. To pay to my said wife during such time as she shall 

remain my widow, the whole interest and produce of the remainder of the 
trust premises when and as the same accrues and shall be received; and it 
is my will that my said wife shall apply such portion of said interest and 
produce as shall be just and proper to the education and the support of my 
children ; and if said interest and income shall not be adequate for the 
comfortable maintenance of my said wife, and the education and the sup- 
port of my children as aforesaid, I order and direct the trustees or trustee 
who shall for the time being be acting under this will, to appropriate such 
portion of the principal of said remainder of the trust premises to the pur- 
poses aforesaid as shall be requisite and necessary. If my wife desires to 
occupy either of the dwelling-houses of which I may die the owner, I direct 
said trustees or trustee to permit her to do so. 



264 TEE PROPERTY RIGHTS OF 

6th. To each of my sons attaining majority in my wife's lifetime, and 
requesting a sum of money to enable him to commence business, an 
advancement not exceeding the sum of six thousand dollars shall be made; 
and an advance not exceeding the sum of four thousand dollars shall also 
be made to each of my daughters respectively, on the day of her marriage, 
having the consent of their mother thereto ; which advancements shall be 
charged to each child receiving the same, and be accounted ior in the final 
distribution of my estate as parts of their shares respectively. 

At the death or marriage of my said wife (whichever event shall first 
happen), the whole principal sum or trust fund, excepting said seventeen 
shares in the Bank, shall be conveyed, distributed, and paid over 

to and among my children, or the issue of a deceased child, who shall take 
by representation its parent's share ; provided, however, that the shares to 
which my daughters shall be respectively entitled shall be so conveyed and 
passed to a trustee or trustees, to be nominated by my said daughters 
respectively, and appointed by the judge of probate having jurisdiction 
over this will, as that the income and produce of such shares or share shall 
be secured to the sole and separate use of my daughters or daughter during 
their respective lives; and so also that the capital or principal fund shall, 
at the decease of my said daughters respectively, go to their respective 
issue; and in default of such issue to such person or persons, for such 
estates and interest therein, and in such way and manner as by a last 
will, or any instrument in the nature of a last will, my said daughters 
shall respectively give and appoint the same; and in default of such appoint- 
ment, the same shall go to and be divided between my issue; and in default 
of issue, to his heirs and assigns for ever. The share of either 

daughter in a deceased sister's fund to be added to the fund held for the 
survivors or survivor. In case neither of my children nor their issue shall 
be living at the marriage or the death of my said wife as aforesaid, then 
said principal or trust fund (excepting said seventeen shares as aforesaid) 
shall go to his heirs and assigns for ever. 

My lot at shall be and remain a family burial-place for all 

my lineal descendants and those persons with whom they shall intermarry; 
and it is my will that no disposition be ever made of said lot which is incon- 
sistent with this provision; which shall apply also to my tomb, No. 
in the burying-place of 

I give and confer to and upon the trustees or trustee acting under this 
will, full power and authority, by public sale or private contract, in such 
way and manner, and at such price or prices, as they or he shall deem 
expedient, to make sale of and convey any and all the real estate of which 
the trust premises are or shall be composed; and to do all needful acts requi- 
site to convey a title thereto to a purchaser or purchasers; and to invest 
the proceeds arising from such sale or sales in other real estate or in per- 
sonal property, with like power of disposition over any and all the real 
estate in which the trust premises, or any part thereof, shall be invested. 
And it is my will that said trustees shall not be answerable for any losses 
or damage to the trust premises, unless the same shall happen by their 
own wilful default or negligence ; nor shall either of them be answerable 
for the others or other of them, but each for himself only, and then only 



A CITIZEN OF THE UNITED STATES. 265 

for such portion of the premises as shall actually be received by him: and 
I direct that said trustees shall not be required to give bonds for the 
faithful execution of the trusts hereby reposed in them. 

If by refusal to accept said trusts, by resignation, death, removal, or 
incapacity to act, the number of trustees shall at any time be reduced to 
one, it is my will that one or more trustees shall be appointed to fill such 
vacancy: and I authorize my wife, if living, in conjunction with those of 
my children who shall have attained majority, to appoint and nominate 
such new trustees or trustee, with the concurrence of the judge of probate 
for the time being having jurisdiction over this will; and in case of their 
neglect or refusal so to do, I refer the appointment to said judge of 
probate, or to the Supreme Judicial Court sitting in chancery; and such 
new trustees or trustee shall have and possess all and the like interest, 
power, and direction in and over the trust premises, as if he or they had 
been originally named and appointed in and by this instrument (except the 
exemption from giving bonds for the due execution of said trusts). 

I appoint the said and my wife guardians to 

each of my children during their minority; and I direct that neither be 
required to give bonds for their fidelity as such guardians. 

I constitute and appoint the said the executor of this will, 

which shall operate upon all real estate of which at the time of my decease 
I shall be owner. 

In witness whereof, I, the said have hereunto set my 

hand and seal, this second day of January, in the year eighteen hundred 
and forty-seven. 

{Name.) {Seal.) 

Then and there signed, sealed, published, and declared by the said 
as and for his last will and testament, in presence of us who, 
at his request, in his presence, and in presence of each other, have hereto 
subscribed our names as witnesses. 



SECTION IV. 
EXECUTORS AND ADMINISTRATORS. 

An executor is a person named in the will of a deceased person, 
to settle his or her estate. There may be one or more ; and they 
may be male or female. An administrator is one appointed by the 
court to settle the estate of a deceased person. If the deceased left 
a will, but did not appoint an executor, or the appointed executor 
refuses to act, or resigns, or dies, or for any reason fails to act, an 
administrator is appointed by the court, " with the will annexed." 
The husband of a deceased wife, or the w r ife of a deceased husband, 
has generally the right to be appointed administrator ; after them 
the next of kin, in the order of relationship. But the courts have 
some discretion in the matter. 



266 THE PROPERTY RIGHTS OF 

If a testator wishes that his executor, or that trustees whom 

he appoints by his will, should not give bonds, he should say so, in 
some such words as these: "I desire and direct that neither my 
executor nor ray trustees herein named should be required to give 
bonds." Then other trustees appointed by the court do give bonds. 

Executors and administrators act as the personal representa- 
tives of the deceased, having in their hands his means, for the pur- 
pose of discharging his liabilities, or executing his contracts, and of 
carrying into effect his will, if he have left one ; and in general they 
are liable only so far as these means (called assets) in their hands 
are applicable to such a purpose. But they may become personally 
liable ; and a clause in the statute of frauds (which see) refers to 
this subject, making them not liable to pay any debt out of their 
own means, unless they give a promise to that effect, in writing, 
signed by them. 

In this country the judicial officer or judge who has the charge 
of the settlement of estates, of the proof of wills, and of proceedings 
under them, is generally called the judge of probate. But in some 
States he is called surrogate, ordinary, register or registrar of wills 
or of probate, judge of the Orphan's Court, &c. His powers and 
duties are very similar all over the country. From his decrees or 
decisions an appeal may generally be taken, by a party who thinks 
himself aggrieved, to the Supreme Judicial Court. The judge of 
probate is usually a county officer, and his jurisdiction is then 
limited to his county. 

If an executor or administrator receives, as such, a promissory 
note or bill of the deceased, and indorses the same with his name, 
without adding " executor" or "administrator," he is liable upon it 
personally. If he makes a note or bill, signing it "as executor," he 
*s personally liable, unless he expressly limits his promise to pay by 
the words, "out of the assets of my testator," or, "if the assets be 
sufficient," or in some equivalent way ; but a note or bill so qualified 
would not be negotiable, because on condition. If an executor or 
administrator submits a disputed question to arbitration in general 
terms, and without an express limitation of his liability, and the 
arbitrators award that he shall pay a certain sum, he is liable to pay 
it whether he has assets or not. But if the award be merely that 
a certain sum is due from the estate of the deceased, without saying 
that the executor or administrator is to pay it, he is not precluded 
from denying that he has assets. 

Where the will of the deceased is of an executory nature, and 
the personal representative can fairly and sufficiently execute all 
that the deceased could have done, he may do so, and enforce the 
contract. But where an executory contract is of a strictly personal 



A CITIZEN OF THE UNITED STATES. 267 



nature, — as, for example, with an author for a specified work, or with 
an artist for a painting, — the death of the writer before his book is 
completed, or of the artist before the painting is finished, absolutely 
determines the contract, unless what remains to be done — as, for 
example, in the case of a book, the preparing of an index, or table 
of contents, &c. — can certainly be done as well, and to the same 
purpose and effect, by another. 

If executors or administrators pay away money of the deceased 
by mistake, or enter into contracts for carrying on his business for 
the benefit of his personal estate, and to wind up his affairs, they 
may sue on such contracts either in their individual or their repre- 
sentative capacities ; but they should sue in the latter capacity, in 
order to avoid a set-off against them of their individual debts. 

The title of an administrator does not exist until the grant of 
administration. Then it goes back to the death of the deceased ; 
but only in order to protect the estate, and not for any other pur- 
pose. And if an agent sells goods of the deceased after his death 
and in ignorance of his decease, the administrator may adopt the 
contract, and sue upon it for the price of the goods. 

On the death of one of several executors, either before or after 
probate, the entire right of representation survives to the others. 
But if an administrator dies, or a sole executor dies, no interest and 
no right of representation is transmitted to his personal represent- 
atives. 

An executor derives his authority from the will, and his duties 
begin at the death of the testator. They may be stated thus : — 

1. He should cause the deceased to be buried in a suitable 
manner. 

2. He should offer the will for probate as soon as he can with 
a reasonable regard to his convenience; and in proving the will, 
filing bonds, giving notice, making and returning an inventory, and 
the like, he must conform to the law of the State and the rules of 
the probate ; and he will obtain at the office sufficient information 
on all these points. 

3. He must collect the property, and, after paying the debts, 
he must distribute or dispose of the remainder as the will directs. 

4. He must render his account from time to time, until a final 
settlement of the estate is made, and will be directed at the probate 
office when and how to file his accounts. 

An administrator derives his authority from the court. But 
his duties are then substantially similar to those of an executor, 
excepting that he must distribute and dispose of the estate as the 
law requires, as he has no will to direct him unless he is an adminis- 
trator with the will annexed. The debts must be paid, in a certain 



268 THE PROPERTY RIGHTS OF 

order. This is not precisely the same in all the States ; but it is 
very generally as follows: 1. Funeral expenses, charges of the last 
sickness, and probate charges ; 2. Debts due to the United States ; 

3. Debts due to the State in which the deceased had his home; 

4. Any liens attaching to the property by law ; 5. To creditors gen- 
erally. 

If the estate is insufficient to pay all the debts due from it, as 
soon as the executor or administrator finds this to be the case, he 
should represent the estate as insolvent at the Probate Court, and 
thereafter follow the requirements of the. law of the State and the 
rules of the Probate Office in reference to insolvent estates of 
deceased persons. 

In most of the States all the necessary forms or instruments 
are given to applicants at the Probate Office. It may, however, be 
convenient to know how to frame some of the most necessary forms ; 
and I give below those which, with such obvious changes as circum- 
stances require and indicate, may be found sufficient. 

FORMS ANNEXED TO THIS SECTION. 

(17 a.) Petition to be appointed executor without further notice. 

(17&.) Executor's bond. 

(17 c.) Bond of executor, who is also residuary legatee. 

(17 c?.) Administrator's bond. 

(17 e.) Administrator's petition for leave to sell a part of the real 

estate. 
(17/.) Bond of administrator licensed to sell real estate. 
(17 g.) Account of executor. 

(17 a.) 

PETITION TO BE APPOINTED EXECUTOR WITHOUT FURTHER 
NOTICE, 

To the Honorable the Judge of the Probate Court in and for the County 
of 
Respectfully represents (name of the executor), of (residence of 
executor), that (name of testator), who last dwelt in (resilence of testator), 
died on the day of in the year of our Lord one 

thousand eight hundred and possessed of goods and estate 

remaining to be administered, leaving a widow, whose name is (name of the 
widoic), and as his only heirs-at-law and next of kin, the persons whose 
names, residences, and relationship to the deceased are as follows, viz. : 
(here give all the names, stating the relationship of each person). That said 
deceased left a will and a codicil, herewith presented, wherein your peti- 
tioner is named executor. 



a CITIZEN OF THE UNITED STATES, 269 

Wherefore your petitioner prays that said will and codicil may be 
proved and allowed, and letters testamentary issued to him. 

Dated this day of a.d. 186 

( Signature of executor.) 

The undersigned, being all the heirs-at-law and next of kin, and the 
only parties interested in the foregoing petition, request that the prayer 
thereof be granted without further notice. 

(Signatures of heirs.) 

[Minors must be so designated, and the names of their guardians given, if they have 
any. If any party is a married woman, her husband's name must be given.] 

(17 b.) 

EXECUTOR'S BOND, 

Know all men by these presents, That we (name of the executor) , 
as principal, and (names of his sureties), as sureties, and all within the Com- 
monwealth (or State) of are holden and stand firmly bound 
and obliged unto judge of the Probate Court in and for the 
county of in the full and just sum of dollars, to 
be paid to said judge and his successors in said ofiice ; to the true payment 
whereof we bind ourselves and each of us, our and each of our heirs, exec- 
utors, and administrators, jointly and severally, by these presents. Sealed 
with our seals. Dated the day of in the year of 
our Lord one thousand eight hundred and sixty- 

The condition of this obligation is such, That if the above- 
bounden (name of the executor) , executor of the last will and testament of 
(name of the testator), late of (residence of testator), deceased, testate, 
shall, — 

First, Make and return to the Probate Court for said county of 
within three months from his appointment, a true inventory of all the real 
estate and all the goods, chattels, rights, and credits of said testator, which 
are by law to be administered, and which shall have come to his possession 
or knowledge; 

Second,- Administer according to law and the will of said testator all 
the goods, chattels, rights, and credits, and the proceeds of all the real 
estate that may be sold for the payment of debts or legacies, which shall 
come to the possession of said executor, or of any other person for him; 
and, 

Third, Render upon oath a just and true account of his administration 
within one year, and at any other times when required by said court: then 
this obligation to be void ; otherwise to remain in full force and virtue. 

(Signature of executor.) (Seal.) 
(Signature of surety.) (Seal.) 
(Signature of surety.) (Seal.) 

Signed, sealed, and delivered in presence of 

88. 186 Examined and approved. 

(Name of judge.) 

Judge of Probate Court* 



270 THE PROPERTY RIGHTS OF 

(17 c.) 
BOND OF EXECUTOR, WHO IS ALSO RESIDUARY LEGATEE. 

Know all men by these presents, That I {name of the executor), in 
the Commonwealth {or State) of * am holden and stand firmly 

bound and obliged unto Judge of the Probate Court in and 

for the county of in the full and just sum of . dol- 

lars, to be paid to said judge and his successors in said office; to the true 
payment whereof I bind myself and my heirs, executors, and administra- 
tors, by these presents. Sealed with my seal. Dated the day of 
in the year of our Lord one thousand eight hundred and 
sixty- 

The condition of this obligation is such, That if the above- 
bounden {name of executor), executor of the last will and testament of 
{name of testator) , late of {residence of testator) , deceased, testate, being 
residuary legatee in said will, shall pay all debts and legacies of said testa- 
tor, and such sums as may be allowed by said Probate Court for necessaries 
to the widow or minor children of said testator, then this obligation to be 
void, otherwise to remain in full force and virtue. 

{Signature.) (Seal.) 

Signed, sealed, and delivered in the presence of 

ss. 186 Examined and approved. 

{Name of judge.) 

Judge of Probate Court. 

(17 A) 

ADMINISTRATOR'S BOND. 

Know all men by these presents, That we {name of administrator), 
as principal, and {name of sureties), as sureties, and all within the State of 

are holden and stand firmly bound and obliged unto 
judge of the Probate Court in and for the county of in the 

full and just sum of dollars, to be paid to said judge and his 

successors in said office ; to the true payment thereof we bind ourselves and 
each of us, our and each of our heirs, executors, and administrators, jointly 
and severally, by these presents. Sealed with our seals. Dated the 
day of in the year of our Lord one thousand 

eight hundred and sixty- 

The condition op this obligation is such, That if the above- 
bounden {name of administrator) , administrator of the estate of {name of 
deceased), late of {residence of deceased), deceased, intestate, shall, — 

* If sureties are required, they should be added here, as in preceding Form 



A CITIZEN OF THE UNITED STATES. 271 

First, Make and return into said Probate Court, within three months 
after his appointment, a true inventory of all the real estate, and all the 
goods, chattels, rights, and credits of said deceased, which have or shall 
come to his possession or knowledge; 

Second^ Administer according to law all the goods, chattels, rights, and 
credits of said deceased, and the proceeds of all his real estate that may be 
sold for the payment of his debts, which shall at any time come to the pos- 
session of said administrator, or of any other person for him; 

Thirds Render upon oath a true account of his administration, within 
one year, and at any other times when required by said court; 

Fourth) Pay any balance remaining in his hands, upon the settlement 
of his accounts, to such persons as said court shall direct; and 

Fifth) Deliver the letters of administration into said court, in case any 
will of said deceased is hereafter duly proved and allowed: then this obli- 
gation to be void ; otherwise to remain in full force and virtue. 

(Signature of administrator.') (Seal.) 
(Signature of surety.) (Seal.) 

(Signature of surety.) (Seal.) 

Signed, sealed, and delivered in presence of 



186 Examined and approved. 
(Name of judge.) 

Judge of Prolate Court. 



(17 e.) 

ADMINISTRATOR'S PETITION FOR LEAVE TO SELL A PART OF THE 
REAL ESTATE. 

To the Honorable the Judge of the Probate Court in and for the County of 

Respectfully represents (name of the administrator)) as he is admin- 
istrator of the estate of (name of the deceased)) late of (residence of the 
deceased), in said county, deceased. That the 

debts due from the deceased, as nearly as they can 

now be ascertained, amount to $ 

And the charges on administration to 

Amounting in all to $ 

That the value of the personal estate in the hands of the peti- 
tioner (exclusive of the widow's allowance) is . . . . $ 



And that the personal estate is therefore insufficient to pay the 
debts of the deceased and the charges of administration, 
by the sum of $ 

Wherefore your petitioner prays that he may be licensed to sell so 



5472 THE PROPERTY RIGHTS OF 

much of the real estate of said deceased as will raise the last-mentioned 
sum, for the payment of said debts and charges of administration. 
Dated the day of a.d. 186 

(Signature.) 

The undersigned, being all persons interested, hereby assent to the sale, 
as prayed for in the foregoing petition. 

(Here should follow the signatures of the widow and all the heirs.) 

[If the petitioner wishes the court for special reasons to direct what specific part of the 
real estate shall be sold, he must set forth the value, description, and condition of the 
estate, or of such part as he proposes to sell. Or he may say that a partial sale would 
iniure the estate, and ask a license to sell the whole.] 



(17/.) 

BOND OF ADMINISTRATOR LICENSED TO SELL REAL ESTATE. 

Know all men by these presents, That we (name of person licensed), 
as principal, and (names of his sureties), as sureties, and all within the State 
of are holden and stand firmly bound and obliged unto 

Esquire, judge of the Probate Court in and for the county of 
in the full and just sum of dollars, to be paid to said 

judge, and his successors in said office; to the true payment whereof we 
bind ourselves, and each of us, our and each of our heirs, executors, and 
administrators, jointly and severally, by these presents. Sealed with our 
seals. Dated the day of in the year of our Lord 

one thousand eight hundred and sixty- 

The condition of this obligation is such, That if the above- 
bounden (name of the person licensed), administrator of the estate of (name 
of deceased) , late of (residence of deceased) , deceased, who has been licensed 
by said court to sell real estate of said deceased, more than is necessary for 
the payments of debts, and charges of administration, shall 

account for and dispose of according to law all proceeds of the sale remain- 
ing after payment of debts, and charges: then this obligation to 
be void; otherwise to remain in full force and virtue. 

(Signature of administrator.) (Seal.) 
(Signature of surety.) (Seal.) 

(Signature of surety.) (Seal.) 

Signed, sealed, and delivered in presence of 

ss. a.d. 186. Examined and approved. 

(Name of judge.) 

Judge of Probate Court. 

I (name of administrator), do solemnly swear, that in disposing of the 
real estate of (name of the deceased), deceased, which I have been licensed 
by the Probate Court to sell, I will use my best judgment in fixing on the 
time and place of sale, and will exert my utmost endeavors to dispose 



A CITIZEN OF THE UNITED STATES. 273 

of the same, in such manner as will be most for the advantage of all 
persons interested therein. So help me God. 

(Signature of administrator.) 

ss. 186 Personally appeared the 

above-named and took and subscribed the above oath. 

Before me, 

Justice of the Peace. 

(17*) 
ACCOUNT OF EXECUTOR. 

The first (or second or other, as the case may be) account of (name of 
executor), executor of the last will and testament of (name of the testator), 
late of (residence of the testator), in the county of deceased. 

Said accountant charges himself with the several amounts re- 
ceived, as stated in Schedule A, herewith exhibited . . $ 

And asks to be allowed for sundry payments and charges, as 
stated in Schedule B, herewith exhibited 



Balance $ 

(Signature.) Executor. 

The undersigned, being all the parties interested, having examined the 
foregoing account, request that the same may be allowed without further 
notice. 

(Signatures of the widow and all the heirs and legatees.) 

(Then follow the schedules.) 



CHAPTER V. 
DEEDS OF LAND. 

SECTION I. 
WHAT IS ESSENTIAL TO DEEDS CONVEYING LAND. 

By the statutes and usage of this country, generally, no lands 
can be transferred excepting by a deed, which is signed, sealed, 
acknowledged, and delivered ; and it should always be recorded. 

By the old law, no instrument was considered made until it 
was sealed ; then it was thought to be done, and the word deed, 

18 



274 THE PROPERTY RIGHTS OF 

which literally means only something done, was given to every 
written instrument to which a seal was affixed ; and that is the 
legal meaning now. But the common meaning of the word is an 
instrument for the sale of lands ; and it is of this that we would 
now treat. 

What the deed should be, that is, in what words it should be 
expressed, we can best show by the forms appended to this chapter, 
and do not propose to say more about it than this. It is not safe 
to depart from forms and established phrases, which have passed 
before the courts so often that their exact meaning is certainly 
known. There are things which seem to be and perhaps are vain 
repetitions ; and for the usual words it may be thought that others 
of the same or better meaning may be substituted. Such changes 
may be made, perhaps, without detriment ; but perhaps, also, with 
ruinous results : and it is not wise to run the risk. 

It should be signed ; and this means, properly, that the seller 
or grantor should write his name in the usual way, in the proper 
place, and with ink. If the grantor cannot write his name, he may 
merely make his mark. It has been said that writing with a lead- 
pencil is enough, but it would not be safe to trust to it. The name 
of the grantee should be distinctly written in the proper place, in 
ink. Sometimes, in our large cities, an agent buys land for a prin- 
cipal who does not wish to be known, and the agent's name is 
inserted as grantee, in pencil, and the deed is so executed and 
acknowledged and delivered ; and some time afterwards the agent 
rubs his name out, and writes the name of his principal, the actual 
buyer, instead. But this is a very unsafe and reprehensible practice, 
and the deed cannot be considered satisfactory. 

The deed of a corporation must be signed by an agent or at- 
torney, who should be careful to execute it in the manner indicated 
in some of the forms appended. In one case, in Massachusetts, 
where a deed was written throughout as the deed of a corporation, 
and their treasurer signed it thus: "In witness whereof, I, the said 
C C, in behalf of the said company, and as their treasurer, have 
hereunto set my hand and seal," — it was held that this was the 
deed of the treasurer, and not the deed of the corporation, and did 
not transfer the lands. This is an extreme case, and the law might 
not always be applied with so much severity ; but it is best not to 
incur any such risk. So, too, the rule that a person who is to be 
authorized to affix the seal of another should be authorized under 
the seal of the principal, is so general, that, although it has impor- 
tant exceptions, it should always be observed. 

The seal is properly a piece of paper wafered on, or sealing- 
wax pressed on. In the New England States generally, and in New 



A CITIZEN OF THE UNITED STATES. 275 

York, nothing else satisfies the legal requirement of a seal. In the 
Southern and Western States generally, a scrawl, intended for a 
6eal, usually made by writing the word " seal " within a square or 
diamond, is regarded in law as a seal. If there be but one seal on 
an instrument, and many parties, all of whom should seal it, this 
seal will be taken generally for the seal of each one ; although, prop- 
erly, each signer should put a seal against his own name. 

The deed should be delivered. If a man makes a deed, and 
acknowledges it, and keeps it in Ids possession, and dies, the deed 
has no effect whatever ; no more than if the grantor had put it in 
the fii a. Even where it was recorded, and then taken back by the 
grantor and kept by him, with words going to show that the grantor 
did not wish the grantee to know of it, it was held not to have been 
delivered. But there are no especial words or form necessary for 
delivery. If the deed, in any way whatever, gets into the posses- 
sion of the grantee, with the knowledge and consent of the grantor, 
it is a delivery. 

The grantor may deliver it by his agent, and it may be deliv- 
ered to the agent of the grantee, authorized by him to receive it. 
Moreover, the law permits a kind of conditional delivery. Thus, 
the grantor may deliver the deed to a third person, to be delivered 
by him to the grantee on a certain condition, or when a certain 
thing is done ; and when that condition is performed, or the thing 
is done, the deed belongs to the grantee, and takes effect in the same 
way as if it had been delivered to him personally. In legal lan- 
gunge, the deed is said to be delivered to the third person, as an 
escroio. 

So the grantor may put the deed in the hands of the third 
person, with directions to give it to the grantee after the death of 
the grantor, provided the grantor does not reclaim it in the mean 
time. Then the grantor can reclaim it whenever he will, which 
he cannot do after he has delivered it to the grantee ; but if he does 
not reclaim it during his life, at his death it becomes the property 
of the grantee, and the law now considers that it was delivered to 
him when first delivered to that third party. So that deed is good 
even against creditors, provided that the grantor was perfectly 
sclvent when he put the deed in the hands of the third party, and 
acted altogether in good faith. 

If a deed to a married woman be delivered either to her or 
to her husband, it is sufficient. 

As there must be delivery to the grantee, or to some one for 
him, so there must be assent and acceptance on his part. The law 
will help any evidence tending to show such assent, by presuming 
in favor of the grantee's assent if the deed be wholly and only favor- 



276 THE PROPERTY RIGHTS OF 

able to him. But not if there is money to be paid by him, or any 
thing important to be done by him if he accept the deed. 

It is usual and proper that the execution of the deed should 
be attested by witnesses. In many of our States two witnesses are 
required by statute. In New York one is enough. In the greater 
number, witnesses are not absolutely required by statutes, nor by 
strict law of any kind ; but even there it is usual and safer to have 
them. 

The witness should see the party sign ; but if the deed is signed 
near him, and is immediately brought to him by the grantor, who 
tells him that is his signature, and asks him to witness, this would 
be sufficient in law. 

It is desirable that witnesses, when called on to testify, should 
remember the signature, sealing, &c. ; but it is sufficient in law that 
they are certain of their handwriting, and can declare under oath 
that they should not have attested the execution and delivery if 
they had. not seen it. If witnesses are dead, or inaccessible, proof 
of their handwriting is sufficient ; and if this cannot be offered, then 
proof of the handwriting of the grantor is enough. If witnesses 
attest the signing, sealing, and delivery, in the common form, proof 
of their handwriting, in case of their death or absence, is proof of 
the execution and delivery of the deed. 

The witness should, properly, he of sufficient age and under- 
standing, but may be a minor. He should have no interest in the 
deed. Hence a wife is not a proper witness of a deed to her hus- 
band. But the courts, and especially a court of equity, w^ould sel- 
dom permit a deed to be avoided through the incompetence of a 
witness, if there were no suspicion of wrong. 

Generally a deed is valid as between the parties, although not 
acknowledged ; but, to entitle it to be recorded, it must be acknowl- 
edged. For this purpose the grantor must go before a person qual- 
ified by law to receive acknowledgments, and exhibit the deed to 
him, and acknowledge it as his free act and deed ; and the person 
receiving the acknowledgment then certifies that he has received 
this acknowledgment, under the proper date. 

In general, an acknowledgment may be made before any jus- 
tice of the peace, or a commissioner appointed for the State in which 
the land to be conveyed is situated, if the deed is executed in 
another State, or any consul or consular agent of the United States 
if the deed is executed in a foreign country. This acknowledgment 
must be made, or the deed cannot be recorded. And the deed is 
invalid, as notice, if the acknowledgment is defective, although it is 
actually recorded. 



A CITIZEN OF THE UNITED STATES. 277 

Formerly, all the grantors acknowledged the deed; and this 

continues to be usual in most places, and is the safest practice. But, 
in some places, it is now sufficient in law if either of the grantors 
acknowledge it. 

In many States, if a wife, separately or joining with her hus- 
band, conveys away her land, a particular form and mode of ac- 
kncwledgment, and a separate examination of the wife are required, 
in older to ascertain that she does it of her own free will ; and any 
such directions or requirements should be followed with great care. 
The forms added to this chapter will show how this is done. 

An attorney, A B, who executes a deed for another, C D, should 
acknowledge it as "the free act and deed of the said CD," and not 
as his own. 

The justice taking the acknowledgment must be careful to 
state it in his certificate, exactly as it was made before him. 

In some of our States recent laws have in effect required the 
assent of the wife to a transfer of the husband's real estate ; not 
merely to convey her dower, but to pass the property to the 
grantee. We do not enumerate or specify these States here, hav- 
ing given previously an abstract of the law of husband and wife 
in all the States. 

In all our States we have the excellent system of registering 
(or recording, as it is more frequently called) all deeds of land in 
the public registers of the county in which the land lies. This was 
adopted for the purpose of giving certainty and notoriety to title, 
and it works admirably well. The investigation of title is usually 
easy to those accustomed to this mode ; and every purchaser of 
land should ascertain that the deed will give him good title before 
he takes it. 

The law generally requires that a deed of lands should he 
acknowledged and recorded, to have full effect; but judicial de- 
cisions have everywhere qualified the force of these words, and in 
some instances the language of the statutes varies. But the rules of 
law in reference to the recording are quite uniform in all the States, 
and are as follows : — 

In the first place, every acknowledged deed is considered as 
recorded as soon as it is in the hands of the recording officer ; and 
therefore he generally minutes upon it the day, hour, and minute 
when it was reeeived by him. This may be very important ; for if 
A makes his deed and delivers it to B, who presents it for record at 
five minutes past noon, and C, a creditor of A, attaches the same 
estate at four minutes past noon of the same day, the grantee loses 
the land and the creditor gets it ; but the grantee saves it, if he 
presents it to the office three minutes and fifty seconds after noon. 



278 THE PROPERTY RIGHTS OF 



In the next place, as the purpose of public registration is 

general notoriety, a deed is perfectly good without record against 
the grantor himself and his heirs, because the grantor himself could 
not but know of the deed, and, as all title passed out of him by it, 
his heirs could take none from him. 

And, finally, a deed not recorded is just as good as if it had 
been recorded against any parties, or the heirs of any parties, who 
took the land from the grantor by a subsequent deed, even for a full 
price, if they had at the time notice or knowledge of the prior and 
unrecorded deed. Many wise persons have doubted the expediency 
of this last rule, because it tends to raise troublesome questions, and 
to make grantees careless about recording their deeds. But the 
rule itself is universally and firmly established, and in some statutes 
requiring record this exception is expressed. 

A deed should be dated ; but if it have no date, it will take 
effect from delivery. Any erasures or alterations should be noticed 
and stated above the names of the witnesses, as having been made 
before the execution of the instrument. Any material alteration 
by a grantee, or by his procurement, makes the deed void in most 
cases, so far as he is concerned. 

It is usual, and therefore proper, to name executors, adminis- 
trators, &c, as in the forms appended; but, generally, the rights 
and obligations of the deceased fall by law on their legal repre- 
sentatives. 



SECTION II. 
THE USUAL CLAUSES IN DEEDS. 

It is customary to recite in all deeds the consideration on which 
they are made. This is usually the price paid for them. Sometimes 
it is this price in part, and other things in part. Sometimes there 
is no price paid, the land being either a gift, or conveyed for other 
considerations. In the great majority of deeds, the language used 
is, " In consideration of (so much money), paid me by the said 
(grantee), the receipt whereof I acknowledge." Or it is, "In con- 
sideration of one dollar paid me, the receipt of which I acknowledge, 
and divers other considerations;" or, "In consideration of one 
dollar to me paid, the receipt of which I acknowledge, and of the 
love and good-will I bear to the said (grantee)." It is always 
customary, although not necessary, to put in " one dollar," or some 
other nominal sum, although no price is paid. 

Although the price is inserted, and the receipt thereof be ac- 
knowledged, the seller is not bound by his receipt. It is a general 



A CITIZEN OF THE UNITED STATES. 279 

rule, as has been stated, that all written receipts of money are 
open to evidence, although written contracts generally are not. 
Under this rule, the seller may sue for the whole or any part of the 
money of which he has acknowledged the receipt, if he can prove 
that the money he demands has not been paid to him. He cannot, 
however, say that the money has not been paid, and therefore the 
deed is void, and the land has not passed to the grantee. For only 
that part of the deed which is a receipt is open to denial or evi- 
dence. 

Of the words of conveyance, which are usually " give, grant, 
sell, and convey," it needs only be said that it is best to use them, 
because it is usual, but that other words, or these with some change, 
might be sufficient in law. 

The description of the land should he minute and accurate, to 
an extreme degree. In this country it is customary and well to 
refer to the previous deeds by which the grantor obtained his title. 
This is done by describing them by their parties, date, and book 
and page of registry. It may be well to remark that a deed 
referred to in a deed becomes, for most purposes in law, a part 
of the deed referring. 

By the law of England and of America, if land is conveyed by 
deed to "A B," the grantee takes it for his life only. Nor will he 
take it in full property (or, to use the technical law-term, in fee- 
simple), that is, with full power of disposing of it during his life or 
at his death, with a right on the part of his heirs to it if he does 
not dispose of it, unless it is given to "A B and his heirs." These 
last words, which are commonly called words of inheritance, must 
always be added ; for although there are some qualifications to this 
rule, which might help those who take such a deed inadvertently, 
there are none to which it would be safe to trust. 

The deed is terminated by this clause of execution : "In wit- 
ness whereof, I, the said A B, on the day of in the year 

, have hereunto set my hand and seal," or " subscribed (or 

written) my name and affixed my seal." And there should be no 
departure from this, although an exact adherence to this formula 
may not be necessary to the validity of the deed. This clause is 
often called the " in testimonium clause." 

If the deed contains nothing hut what has now been said, it 
will convey the land, or all the right, title, and interest in and to 
the land, possessed by the grantor. But it is only what is called a 
quitclaim deed. That is, it is not a warranty deed. These phrases, 
which are in common use, explain themselves. Originally, a quitclaim 
deed was intended, and, indeed, operated only where the grantee al- 
ready held possession of the land, or some title to it, and the grantor 



280 THE PROPERTY RIGHTS OF 

intended to renounce all his right or title in favor of the grantee. 
But it was soon used where a man intended to sell and convey land, 
but not to give any warranty. And now, because there is some 
question, in some of our States, as to the effect of the words "give, 
grant, sell, and convey," although there be no express warranty in 
the deed, it is usual, and it is best, when only a quitclaim is in- 
tended, without any warranty whatever, to substitute for the words 
of conveyance above mentioned the words "grant and quitclaim," 
or, more accurately, "release and quitclaim." Then, if the grantee 
afterwards loses the land because the grantor had no title to it, the 
grantor is nevertheless under no responsibility, provided the trans- 
action was an honest one on his part. 

All purchasers, therefore, desire to have a warranty deed, if 
they can get one. And a deed becomes a warranty deed when 
clauses like those which follow are inserted just before the clause 
of execution : — 

"And I, the said A B (the grantor), for myself, my heirs, ex- 
ecutors, and administrators, do covenant with the said C D (the 
grantee), his heirs and assigns, that I am lawfully seised in fee of 
the aforegranted premises ; that they are free from all incumbrances ; 
that I have good right to sell and convey the same to the said C D 
as aforesaid ; and that I will, and my heirs, executors, and adminis- 
trators shall, warrant and defend the same to the said C D, his 
heirs and assigns, for ever, against the lawful claims and demands of 
all persons." 

It will be noticed that this paragraph contains four different 
agreements or warranties, — covenants, the law calls them. The 
cases are multitudinous, and the law excessively nice as to their 
exact meaning and operation. None of this technical learning is it 
worth while to spread before the general reader. But the general 
purpose and effect of all of them together should be stated. It is, 
that if " the said C D," that is, the grantee, or his heirs or assigns, 
are turned out of that estate (ousted or evicted, the law says), on 
the ground that the grantor had no title, or an incumbered title, 
and could not convey any good and clear title, he or they may fall 
back on the grantor or his heirs, and demand damages for the loss 
of the land. 

It is a question how much damage a grantee thus ousted shall 
recover. In most of our States it seems to be the money paid for 
it, with interest (deducting rents and profits), and the legal costs 
and charges (not including counsel fees) for defending against the 
suit which has ousted him from the land, and no more. But in 
other States, as generally in New England, the party ousted recovers 
the actual value of the land, with his improvements, which he loses 



A CITIZEN OF THE UNITED STATES. 281 

by the defect of the grantor's title, although this may be much more 
than he paid for it. It is not, however, settled uniformly what the 
measure of damages is. 

In forms of deeds there is usually a blank of a few lines left 
after the word " incumbrances," and this is intended for the inser- 
tion of any mortgage, or other incumbrance, which may exist; 
thus, " excepting a mortgage to, &c, dated, &c, to secure the sum 
of," &c. Or, " excepting a right in the owners of the adjoining 
land to have and maintain a drain running," &c. 

Sometimes quitclaim deeds are made with this warranty: 
" And I will, and my heirs, &c, shall, warrant and defend, &c, to 
the said C D, &c, against all claims and demands of myself, or of 
any persons deriving title by or through me." Such a warranty will 
hold the grantor and his heirs liable for any incumbrance made or 
suffered by him, but not for any other. 

As the usual covenants of a warranty deed are made with the 
grantee, " his heirs and assigns," if such grantee conveys the land 
only by grant and quitclaim, without warranty, his grantee takes 
the benefit of all the previous warranties to which this last grantor 
was entitled. Thus, A sells with warranty to B ; B grants and quit- 
claims to C ; C is ousted by D, who proves that he has a better title 
than A. C cannot sue B, because he got no warranty from B ; but 
he can sue A on A's warranty to B, which was transferred to C. 

Sometimes estates are conveyed on condition ; but this is a very 
catching thing, and nobody should ever take such a deed, if he can 
help it. It is hardly safe to have the word condition in any deed 
but a mortgage. The reason is, that if an estate is conveyed on 
condition, and the condition is broken, the estate is lost. Thus, if 
land is sold on a certain street with this clause : " And the land 
aforesaid is sold on condition that neither the grantee, nor any one 
deriving title from or through him, shall build within ten feet of the 
street." If any owner build six inches over the line, by mistake, or 
extend his building by an addition of a foot or so in any part, the 
whole land, house and all, might be lost and forfeited to the grantor. 
And the grantor can always secure the proper effect of such a con- 
dition by a clause like this : " Provided, however, and it is agreed, 
that if the said C D, &c, shall build, <fcc, the said A B, or his 
heirs or assigns, may enter upon the land hereby conveyed, and 
abate and remove any and all buildings or parts of buildings which 
stand nearer said street than the limit of ten feet aforesaid ; " — 
or some similar clause, as might be framed to suit the case. This 
would be just as good for the grantor, and a great deal safer for the 
grantee. 



282 THE PROPERTY RIGHTS OF 

By a rule of law which originated in this country, and is now 

universal here, if a married woman holds lands, the husband and 
the wife, joining in one deed, may convey them. In some of our 
States such a deed is regulated by statutes, which, of course, are to 
be followed. And in many of them the wife now has peculiar 
powers by statute, as stated in the chapter on Married Women. It 
may be necessary that she should renounce or release certain rights, 
as of homestead, &c, under these statutes, if it is intended that 
the grantee should take a clear title ; and in such case proper words 
should be inserted. This is now the custom, for example, in Massa- 
chusetts. She should always release her right of dower, unless it is 
intended that she should preserve it. In some States her signing 
the deed with her husband does not release any thing, even if it 
could be proved that such was her intention, unless the deed con- 
tain words expressing her intention to release or convey such or 
such a right or interest. In most printed forms there is a blank left 
to be rilled up for this purpose. As this differs in different States, I 
shall refer to it again. 

It may be well to remark that bargains are often made for the 
purchase and sale of real property. If the contract be oral only, it 
has no force in any court. If it be in writing, either party may, in 
a court of law, recover damages from the other if he refuses to per- 
form his contract. Or, in a court of equity, he may compel the 
other to execute his contract. Not, however, if there was fraud in 
the contract, or oppression, or gross misrepresentation, or intentional 
and important concealment. But a mere inadequacy of price — all 
things being honest — will not prevent a court of equity from 
enforcing such an agreement. 

Deeds conveying land are of vast variety. They not only differ, 
that they may suit the particular purposes of the parties and the 
terms of their bargain, but those used in each section of the country 
differ somewhat in form from those used in another; and different 
conveyancers in the same State prefer one form to another. But 
these differences are generally, if not always, differences only of 
form, and are seldom essential to the meaning and effect of the 
deeds. I give here forms of all the kinds most in use ; and in such 
variety, and so selected and prepared, that it is believed that any 
person in any part of this country will be able to find a form which, 
either as it stands, or with such alterations as can be readily seen to 
be required by the use he would make of it, will be safe and suffi- 
cient for his purpose. 

As acknowledgments differ much in form, enough of them are 
given to show the kinds that are used. The fuller and more par- 



a CITIZEN OF THE UNITED STATES. 283 

ticular are the safer, although the shorter and more general might 
be sufficient. 

In New England, a deed of land is usually what is called in 
law a deed-poll ; by which is meant a deed of one party, and from 
him to another. In the other States generally a deed of lands is 
more commonly in the form of an indenture, which is an instru- 
ment between two or more parties. The difference between them 
will be seen in the forms given. The first one is a deed-poll. But 
most of them are indentures, as they are most frequently used; 
although a deed-poll that was satisfactory in other respects would 
generally suffice to give good title to land anywhere. 

A form of a deed-poll may be converted into an indenture 
by changing the beginning of it in the manner shown in the forms, 
and, whenever the word "grantor" comes, changing that into "the 
party of the first part." And a deed by indenture is made a deed- 
poll by changes of an opposite kind. How to make these changes 
will be seen by comparing the deeds of the two kinds as herein 
given. 

Another difference between the deeds-poll in common use in 
the New England States, and the deeds by indenture in use else- 
where, must be noticed. If the grantor by a deed-poll has a wife, and 
it is intended that she shall relinquish her dower, she is not mentioned 
as grantor, but in the in testimonium, so called, which is that part of 
the deed which begins with "In witness (or in testimony) whereof;" 
in this her name is mentioned, and it must be distinctly said that 
she signs the deed in token of her relinquishment or release of dower. 
This is shown in the first of the forms annexed to this chapter. But 
where deeds by indenture are used, there she is joined with her hus- 
band, and named as grantor, he and she being " parties of the first part." 
It is, however, not necessary that any thing should be said in the deed 
about her release of dower or homestead ; but she signs and seals 
the deed, and, in the acknowledgment, express mention is to be 
made of her release of dower and homestead, and also that she was 
separately examined. Some of the forms are drawn in this way. 
Other forms are written as if the grantor was unmarried, or as if 
his wife, if he had one, did not intend to give up her dower. But 
all these forms can be readily altered, and made to resemble either 
of the forms accordingly as there is or is not a wife, or as, if there 
be a wife, it is intended that she should join in the conveyance and 
relinquish her dower, or that the husband should convey subject to 
the wife's dower. If this last be the intention, it is not necessary 
to say so, as the mere fact that she is not a party to the deed pre- 
serves for her her right of dower. 



284 THE PROPERTY RIGHTS OF 



SECTION m. 
MORTGAGES OF LAND. 

The purpose of a mortgage is to give to a creditor the security 

of property. It is very similar to a pledge, although not the same 
thing. 

Mortgages are now made of personal property, as well as of 
real property; but we will consider in this section a mortgage 
of real property; or, as it is usually called, a mortgage deed. 

This is usually a deed conveying the land to the creditor as fully, 
and in precisely the same way, as if it were sold to him outright ; but 
with an addition. This consists of a clause inserted before the clause 
of execution, to the effect that if the grantor (the mortgagor) shall 
pay to the grantee (the mortgagee) a certain amount of money at a 
certain time, then the deed shall be void. It is usually expressed 
in words substantially like these : — 

" Provided, nevertheless, that if the said A B (the grantor), his 
heirs, executors, or administrators, shall pay to the said C D (the 
grantee), his executors, administrators, or assigns, the sum of $ 
with interest (semi-annually, or otherwise as agreed on), on 01 
before the day of then this deed, and also a 

certain promissory note signed by said A B, whereby said A B 
promises to pay said C D, or his order, the said sum at the said 
time, shall both be void ; and otherwise shall remain in full force." 

In some States it is more frequent to make a bond, instead of a 
note, to be secured by the mortgage; and the proviso should be 
altered accordingly; and it should also be made to express any 
other terms agreed on. Some of these will be spoken of presently. 

In law, every thing is a mortgage which consists of a valid con- 
veyance, and a promise, or agreement, providing that the convey- 
ance shall be void when a certain debt is paid, or the act performed 
for which the mortgage is security. 

This promise or agreement, which converts a simple conveyance 
of land into a mortgage, usually is contained in the deed itself; 
and should always be so, for the sake of safety and certainty. This 
is not, however, strictly necessary in point of law. The transaction 
becomes a mortgage, if the grantee gives back an instrument, in which 
it is agreed that the conveyance shall be void if a certain sum of 
money be paid, or a certain thing be done. This is called an instru- 
ment of defeasance ; because it defeats or annuls, upon certain terms, 
the deed of conveyance. 



A CITIZEN OF THE UNITED STATES. * 285 

While a common mortgage deed, like any of those of which 
forms are annexed to this chapter, gives rise to no nice questions of 
law, it is otherwise with a mortgage which consists of an outright 
deed of conveyance, and a separate instrument of defeasance. 
Here numerous questions have arisen, and are answered differently 
in different States. It may be said, however, that the instrument 
of defeasance, whatever be its form, must constitute a part of the 
original transaction. It is not essential that the defeasance be 
reduced to writing or executed, at the same time with the deed of 
conveyance. If executed afterwards, but in conformity with an 
original agreement to that effect, the defeasance and the deed of 
conveyance will be regarded as one transaction. And if they bear 
different dates, but are delivered together, they will constitute a 
mortgage. 

Whatever be the date of the instrument of defeasance, if the 
party who made the deed of conveyance can show by sufficient 
evidence that the original bargain was that the land should only be 
mortgaged, and that the defeasance was made to carry out this 
agreement, it will be held to make a mortgage. 

There is no especial rule now universally admitted as to the 
form of a separate defeasance. The earlier and stricter rule was, 
that the instrument of defeasance must be of as high a nature as 
the instrument of conveyance ; that is, it must be like that, a deed. 
But in a majority of the States in which the question has come 
before the courts, it has been held that any written agreement 
which amounts in substance to a defeasance, although not a deed, 
suffices to make the conveyance a mortgage. This may now be 
considered as the general rule. But in some States the condition 
or defeasance must be inserted in the deed of conveyance. 

In many of the States the courts relieve a party who has made 
an outright deed of conveyance without inserting any condition or 
receiving from the grantee any instrument of defeasance, provided 
he can show even by unwritten evidence that all he intended to 
make was a mortgage. But on this point the diversity of the 
decisions is very great. It must suffice to give the rule prevailing 
in the Supreme Court of the United States. This rule is, that 
wherever a deed of conveyance is absolute in its terms, but it 
would be a fraudulent act on the part of the grantee to insist upon 
its operating as an absolute deed, then the grantor may show, by 
written or unwritten evidence, that the deed was intended to be a 
mortgage. 

If A makes an absolute deed of his land to B, and C buys it 
honestly of B, then C cannot be disturbed by A's showing that 



286 THE PROPERTY RIGHTS OF 

there was an instrument of defeasance, or a bargain making it a 
mortgage, if C had no notice, by record or otherwise, and no knowl- 
edge, either of the instrument of defeasance or of the bargain. 

The mortgagee has a title to the land; but it is subject to 
avoidance by payment of the debt. Until such payment, the land 
is his ; and all the mortgagor owns in relation to it is a right to pay 
the debt and redeem the land. 

It is commonly thought that the mortgagor has a right to retain 
possession until the debt is due and unpaid, and, in fact, he usually 
does so. But the mortgagee has, in law, the same right of imme- 
diate possession as a buyer ; and, therefore, if it is not intended that 
he should have possession at once, the mortgage deed ought to con- 
tain a clause to the effect that the mortgagor may retain possession 
as long as he pays instalments and interest as due, and complies 
with his other agreements or promises. 

Formerly, a mortgagor had a right to redeem his land only be- 
fore or when the debt became due; for, if he did not pay the money 
when it was due, he had no further right. Now he can pay or 
tender the debt only when it is due. But for a long time a rule 
has been established which allows a mortgagor a longer time to 
redeem his land after the debt is due ; and this is now the law 
in all our States. This right to redeem is called a right in equity 
to redeem, or, more briefly and commonly, an equity of redemption ; 
which all courts now regard and protect. The mortgagor may 
sell this equity of redemption, or he may mortgage it by making a 
second or other subsequent mortgage of the land, and it may be 
attached by creditors, and would go to assignees as a part of his 
property if he became insolvent. The time within which a mort- 
gagor may thus redeem his land is usually three years. 

The law regards this equity as so important, that it will not 
permit a party to lose it by his own agreement. Thus, if a mort- 
gagor agrees with the mortgagee, in the most positive terms, or in 
any way he can contrive, or for any consideration, that he will have 
no equity of redemption, and that the mortgagee may have posses- 
sion and absolute title as soon as the debt is due and unpaid, the law 
sets aside all such agreements, and gives the debtor his equity of 
redemption for three years. 

Within a few years, however, a way has been found to effect 
this purpose indirectly, which the law sanctions. Many persons 
object to lending their money on mortgage, because they will have 
to wait three years after the debt is due before the land can be cer- 
tainly theirs. But it is now quite common for the mortgage deed 
to contain an agreement of the parties, that, if the money or the 



A CITIZEN OF THE UNITED STATES. 287 



interest thereon is not paid when it is due, the mortgagee may, in a 
certain number of days thereafter, sell the land (providing also such 
precautions to secure a fair price as may be agreed on), and, reserv- 
ing enough to pay his debt and charges, pay over the balance to the 
mortgagor. This is called a power-of-sale mortgage. There are 
now in some of our States, statutes regulating these power-of-sale 
mortgages. Of course the provisions of these statutes prevail. 
But where such statute does not give to the mortgagee the right to 
purchase the land, he cannot do so; for he is considered in some 
measure as selling the land as a trustee for the mortgagor, and a 
trustee who sells land cannot sell to himself; that is, he can never 
buy the land which he sells. This rule is intended to guard against 
fraud. 

The three years of redemption do not begin from the day when 
the debt is due and unpaid, unless the mortgagee then enters and 
takes possession for the purpose of foreclosing the mortgage, as the 
legal phrase is ; by which phrase is meant extinguishing the equity 
of redemption. If the debt has been due a dozen years, the mort- 
gagor may still redeem, unless the mortgagee has entered to fore- 
close, and three years have elapsed afterwards. 

He may make entry for this purpose in a peaceable manner, 
before witnesses, as pointed out in the statutes regulating mort- 
gages ; or he may bring an action at law to get possession of the 
land. 

If the mortgagor redeems, he must tender the debt, with inter- 
est, and the lawful costs and charges of the mortgagee; but he will 
be allowed such rents and profits as the mortgagee has actually re- 
ceived, or would have received but for his own fault. 

One of these other agreements, which is now very common, is 
that the mortgagor shall keep the premises insured in a certain sum 
for the security of the mortgagee ; or that the mortgagee may insure 
it, and charge the premium to the mortgagor; and, if there be such 
an agreement, it should be expressed in the deed. Otherwise, if 
the mortgagee insures the house, he cannot charge the premium 
to the mortgagor. 

If a mortgagor erects buildings on the mortgaged land, or puts 
fixtures there, and the mortgagee takes possession of the land, and 
forecloses the mortgage, he gets all these additions, without pay- 
ing for them. If the mortgagee puts them on the land, and the 
mortgagor redeems, he gets the benefit of them all, without paying 
the mortgagee for them. Such is the effect of the law if there 
be no bargain between the parties about these things. But they 
may make any bargain about them they choose to make. 



288 THE PROPERTY RIGHTS OF 



FOKMS ANNEXED TO THIS CHAPTEE. 

18. A deed-poll of warranty, in common use in New England. 

19. Deed of gift by indenture, without any warranty whatever. 
20/ Deed of bargain and sale without any warranty. 

21. Quitclaim deed without any warranty. 

22. Deed-poll of release and conveyance. Short form. 

23. Deed with special warranty against the grantor only. 

24. Quitclaim deed. Long form, with waiver of homestead. 

25. Deed with covenant against grantor, without release of homestead 

or dower. 

26. Separate relinquishment of homestead and dower in land sold 

under execution. 

27. Full warranty deed, by indenture, without release of homestead or 

dower. 

28. Warranty deed. Short form, with release of homestead and dower. 

29. Warranty deed, with covenant against nuisances, without release of 

homestead or dower. 

30. Bond for a deed. 

31. Contract for sale of land, with penal obligation. 

32. Power of attorney to sell lands. 

33. Trust-deed for the benefit of a wife or some other person. 

34. Trust-deed to secure payment of a note, without release of home- 

stead or dower. 

35. Trust-deed to secure a debt. Fuller form, with release of dower. 

36. Trust-deed to secure a note. Shorter form, with warranty and 

release of homestead and dower. 

37. Deed from trustees. 

38. Deed of master in chancery. 

39. Sheriff's deed on execution, in use in the Western States. 

40. Sheriff's deed, in use in New England. 

41. Sheriff's tax-deed, in use in the Western States. 

42. Deed of executor, in use in the Eastern States. 

43. Deed of executor, in the Middle States. 

44. Deed of administrator of intestate. 

45. Deed-j)oll of guardian of minor. 

46. Deed of referee on foreclosure, in use in the Middle States. 

47. Deed of collector of taxes. 

48. Deed of assignee, in use in the Western States. 

49. Promissory note, to be secured by mortgage. 

50. Bonds to be secured by a mortgage. 

51. Mortgage without power of sale and without warranty, but with 

release of homestead and dower. 

52. Mortgage with power of sale, to secure a bond without release of 

dower. 

53. Mortgage to secure a debt, with power of sale. Short form. 

54. Mortgage to secure a debt. Fuller form, with power of sale. 

55. Deed-poll of mortgage, with power to sell and insurance clause, 

and release of dower and homestead. 



A CITIZEN OF THE UNITED STATES. 289 

56. Mortgage by indenture, with power of sale and interest and insur- 

ance clause, to secure a bond. 

57. Mortgage to executors, with power of sale. 

58. Mortgage of a lease. 

59. Mortgagee's deed under a power of sale. 

60. Assignment of mortgage. Short form. 

61. Assignment of mortgage, with power of attorney. 

62. Assignment of mortgage by a corporation. 

63. Discharge of mortgage. Short form. 

64. Release and quitclaim of mortgage, as used in the Western States. 

65. Discharge of mortgage, as used in the Middle States. 

66. Discharge and satisfaction of a mortgage by a corporation. 

67. Release of a part of the mortgaged premises. 

68. Deed extending a mortgage. 

48*. Acknowledgment of grantor and wife, before commissioner for 
another State. 

(18.) 

A DEED-POLL OF WARRANTY, IN COMMON USE IN NEW ENGLAND. 

Know all men by these presents, That I, (the grantor), of (resi- 
dence, town or city, county and State), (occupation), in consideration of (the 
amount paid) to me paid by (here name the grantee or purchaser, giving in like 
manner his residence and occupation) , the receipt whereof is hereby acknowl- 
edged, do hereby give, grant, bargain, sell, and convey unto the said (name 
the grantee, and then describe the premises granted, minutely and accurately). 

To have and to hold the above-granted premises to the said (name 
the grantee), his (or hers or their) heirs and assigns, to his (or hers or their) 
use and behoof for ever. And I, the said (name of the grantor), for (my- 
self) and (my) heirs, executors, and administrators, do covenant with the 
said (name of the grantee), and with his heirs and assigns, that I am law- 
fully seised in fee-simple of the afore-granted premises ; that they are free 
from all incumbrances (if there be any incumbrances, as a mortgage or lien, 
or right of way, or drain, or air, or light, say excepting, and then describe 
the incumbrance), that I have good right to sell and convey the same to the 
said (name of the grantee), and his (or her) heirs and assigns forever as 
aforesaid; and that I will, and my heirs, executors, and administrators 
shall, warrant and defend the same to the said (name of the grantee), and 
his heirs and assigns for ever, against the lawful claims and demands of all 
persons. 

In witness whereof, I, the said (name of the grantor), and (name of 
his wife), wife of said grantor, in token of her release of all right and title 
of or to dower in the granted premises, have hereunto set our hands and 
seals, this day of in the year of our Lord eighteen 

hundred and 

(Seals.) 

Signed, sealed, and delivered in presence of 

In those States in which a homestead law exists, the signature 
of the wife, with a clause like that above, would not release the 

19 



290 THE PROPERTY RIGHTS OF 

homestead. To effect this, the following clause should be inserted 
before the words, " In token of: " — 

" In token of her release to the said (name of the grantee), of all her 
right, interest, and estate to or in the premises herein conveyed, under the 
homestead laws of this State; and also," &c. 

Some conveyancers think this hardly sufficient, and prefer the 

following method, which would undoubtedly be effectual in every 
one of these States. Insert before the paragraph beginning, " In 
witness whereof," this paragraph: — 

" And I (name of the wife), wife of the said (the name of the grantor), in 
consideration of one dollar to me paid by the said (the name of the grantee), 
the receipt whereof is acknowledged, do hereby release and assign to the 
said (the name of the grantee), and his heirs and assigns, all my right, in- 
terest, claim, and estate in or to the premises within granted, under the 
homestead laws of this State, or any other statutory provisions thereof." 

It is to be remembered that, whether the deed be a warranty 

deed like that above given, or a release or quitclaim, or a mortgage 
deed, it is equally necessary and proper that the wife should release 
her homestead right and her dower, unless it is intended that she 
should retain them. 

Below the deed comes the acknowledgment. 

Commonwealth (or State) of (County) ss. (Town, month, and 

date.) 

Then personally appeared the above-named and acknowl- 

edged the above instrument to be free act and deed, before me, 

Justice of the Peace. 

(19.) 

DEED OF GIFT BY INDENTURE, WITHOUT ANT WARRANTY WHATEVER. 

This indenture, Made the day of in the year 

one thousand eight hundred and between (name, residence, and 

occupation of the grantor), of the first part, and (name, residence, and occu- 
pation of the grantee), of the second part, witnesseth, That the said (the 
grantor) as well for and in consideration of the love and affection which he 
has and bears towards the said (the grantee) as for the sum of one dollar, 
lawful money of the United States, to him in hand paid by the said party 
of the second part, at or before the ensealing and delivery of these pres- 
ents, the receipt whereof is hereby acknowledged, has given, granted, 
aliened, enfeoffed, released, conveyed, and confirmed, and by these presents 
does give, grant, alien, enfeoff, release, convey, and confirm, unto the said 



A CITIZEN OF THE UNITED STATES. 291 

party of the second part, and his heirs and assigns for ever, all (here describe 
carefully the land or premises granted, by metes and bounds, and dimensions, 
contents or quantity, or boundary marks or monuments, and refer by volume 
and page to the deed of the land to the grantor, under which he holds it). 

Together with all and singular the tenements, hereditaments, and 
appurtenances thereunto belonging or in any wise appertaining, and the 
reversion and reversions, remainder and remainders, rents, issues, and 
profits thereof. And, also, all the estate, right, title, interest, 
property, possession, claim, and demand whatsoever, of the said party of 
the first part, of, in, and to the same, and every part and parcel thereof, 
with their and every of their appurtenances. To have and to hold the 
said hereby granted and described premises, and every part and parcel 
thereof, with the appurtenances unto the said party of the second part, and 
his heirs and assigns, to his and their only proper use, benefit, and behoof 
for ever. 

In witness whereof, The said party of the first part has hereunto 
set his hand and seal, the day and year first above written. 

(Signature.) (Seal.) 

Sealed and delivered in the presence of 



(20.) 
DEED OF BARGAIN AND SALE WITHOUT ANY WARRANTY. 

This indenture, Made the day of in the year 

one thousand eight hundred and between (name, residence, and 

occupation of the grantor), of the first part, and (name, residence, and occu- 
pation of the grantee), of the second part, witnesseth, That the said party of 
the first part, for and in consideration of the sum of lawful 

money of the United States of America, to him in hand paid by the said 
party of the second part, at or before the ensealing and delivery of these 
presents, the receipt whereof is hereby acknowledged, has granted, bar- 
gained, sold, aliened, remised, released, conveyed, and confirmed, and by 
these presents does grant, bargain, sell, alien, remise, release, convey, and 
confirm, unto the said party of the second part, and to his 
and assigns for ever, all (here describe carefully the land or premises granted, 
as directed in Form 19). 

Together with all and singular the tenements, hereditaments, and 
appurtenances thereunto belonging or in any wise appertaining, and the 
reversion and reversions, remainder and remainders, rents, issues, and 
profits thereof. And also all the estate, right, title, interest, property, 
possession, claim, and demand whatsoever, as well in law as in equity, of 
the said party of the first part, of, in, or to the above-described premises, 
and every part and parcel thereof, with the appurtenances. To have and 
to hold all and singular the above mentioned and described premises, to- 
gether with the appurtenances, unto the said party of the second part, and 
his heirs and assigns for ever. 



292 THE PROPERTY RIGHTS OF 

In witness whereof, The said party of the first part has hereunto 
set his hand and seal, the day and year first above written. 

{Signature.') {Seal.) 
Sealed and delivered in the presence of 

State op 

County of 

On this day of in the year one thousand eight 

hundred and before me personally came {the name of the party 

of the first part, who is the grantor) , who is known by me to be the individual 
described, and who executed the foregoing instrument, and then and there 
acknowledged that he executed the same as and for his own deed. 

{Signature.) 

(21.) 

QUITCLAIM DEED WITHOUT ANY WARRANTY. 

This indenture, Made the day of in the year 

one thousand eight hundred and between {name, residence, 

and occupation of the grantor), of the first part, and {name, residence, and 
occupation of the grantee) , of the second part, witnesseth, That the said party 
of the first part, for and in consideration of the sum of lawful 

money of the United States of America, to him in hand paid by the said 
party of the second part, at or before the ensealing and delivery of these 
presents, the receipt whereof is hereby acknowledged, has remised, released, 
and quitclaimed, and by these presents does remise, release, and quitclaim, 
unto the said party of the second part, and to his heirs and assigns for ever, 
all {here describe carefully the land or premises granted, as directed in Form 
19). 

Together with all and singular the tenements, hereditaments, and 
appurtenances thereunto belonging or in any wise appertaining, and the 
reversion and reversions, remainder and remainders, rents, issues, and profits 
thereof. And also all the estate, right, title, interest, property, possession, 
claim, and demand whatsoever, as well in law as in equity, of the said party 
of the first part, of, in, or to the above-described premises, and every part 
and parcel thereof, with the appurtenances. To have and to hold all and 
singular the above mentioned and described premises, together with the 
appurtenances, unto the said party of the second part, and his heirs and 
assigns for ever. 

In witness whereof, The said party of the first part has hereunto 
set his hand and seal, the day and year first above written. 

{Signature.) {Seal.) 

Sealed and delivered in the presence of 

State of 1 

^•ss. 
County of ) 

On this day of in the year one thousand eight 



. 



A CITIZEN OF THE UNITED STATES. 293 

hundred and before me personally came (the name of the 

grantor), who is known by me to be the individual described, and who 
executed the foregoing instrument, and acknowledged that he executed 
the same. 

(Signature.) 

(22.) 
DEED-POLL OF RELEASE AND CONVEYANCE. SHORT FORM. 

Know all men by these presents, That I (the name of releasor), 
of the county of and State of for and in consider- 

ation of one dollar to me in hand paid, and for other good and valuable 
considerations, the receipt whereof is hereby confessed, do hereby grant, 
bargain, remise, convey, release, and quitclaim unto (the name of the 
releasee) , of the county of and State of all the 

right, title, interest, claim, or demand whatsoever I may have acquired in, 
through, or by a certain indenture or deed, bearing date the 
day of a.d. 18 and recorded in the office of 

county, and State of in book of 

page to the premises therein described, to wit 

(here describe carefully the land or premises granted, as directed in Form 19) . 

Witness my hand and seal, this day of a.d. 18 

(Signature.) (Seal.) 
State of ^ 

>■ ss. 
County. ) 

I, in and for said county, in the State aforesaid, do hereby 

certify that (the name of the releasor) , personally known to me as the same 
person whose name is subscribed to the foregoing deed, appeared before 
me this day, in person, and acknowledged that he signed, sealed, and 
delivered the said instrument of writing as his own free and voluntary act, 
for the uses and purposes therein set forth. 

Given under my hand and seal, this day of 

a.d. 18 

(Signature.) (Seal.) 

(23.) 

DEED, WITH SPECIAL WARRANTY AGAINST THE GRANTOR ONLY 

This indenture, Made this day of in the 

year of our Lord one thousand eight hundred and sixty- be- 

tween (the name of the grantor) and (name of the wife of grantor), wife of the 
said (name of the grantor), of the county of and State of 

parties of the first part, and (name and residence of the 
grantee), party of the second part : Witnesseth, that the said parties of 
the first part, for and in consideration of the sum of to them 

paid by the said party of the second part, the receipt of which is hereby 
acknowledged, do by these presents, grant, bargain, and sell unto the saii 



294 THE PROPERTY RIGHTS OF 



party of the second part, and his heirs and assigns, the following-described 
tract or parcel of land, situate in (here describe carefully the land or prem- 
ises granted, as directed in Form 19) . 

Together with all and singular the tenements, hereditaments, and 
appurtenances thereto belonging, or in any wise appertaining, and the 
reversion and reversions, remainder and remainders, rents, issues, and 
profits thereof; and also all the estate, right, title, interest, property, pos- 
session, claim, and demand whatsoever, as well in law as in equity, of the 
said parties of the first part, of, in, or to the above-described premises, 
and every part and parcel thereof, with the appurtenances. To have and 
to hold all and singular the above mentioned and described premises, 
together with the appurtenances, unto the said party of "the second part, 
and his heirs and assigns for ever. 

And the said the said parties of the first part, hereby 

expressly waive,' release, and relinquish unto the said party of the second 
part, and his heirs, executors, administrators, and assigns, all right, title, 
claim, interest, and benefit whatever in and to the above-described prem- 
ises, and each and every part thereof, which is given by or results from 
all laws of this State pertaining to the exemption of homesteads. 

And the said parties of the first part, for themselves and their heirs, 
executors, and administrators, do hereby covenant, promise, and agree to 
and with the said party of the second part, his heirs and assigns, that the 
said premises, against the claim of all persons claiming or to claim by, 
through, or under him only, he will for ever warrant and defend. 

In testimony whereof, The said parties of the first part have here- 
unto set their hands and seals the day and year first above written. 

(Signature of grantor.} (Seal.) 

(Signature of wife of grantor.) (Seal.) 

Sealed and delivered in presence of 



State of 

County. 



■i 



I, in and for said county, in the State aforesaid, do hereby 

certify that (name of the grantor) , personally known to me as the same per- 
son whose name is subscribed to the annexed deed, appeared before me 
this day in person, and acknowledged that he signed, sealed, and delivered 
the said instrument of writing as his free and voluntary act, for the uses 
and purposes therein set forth. 

And the said (name of the grantors wife), wife of the said (name of the 
grantor), having been by me examined, separate and apart and out of the 
hearing of her husband, and the contents and meaning of the said instru- 
ment of writing having been by me fully made known and explained to 
her, and she also by me being fully informed of her right under the home- 
stead laws of this State, acknowledged that she had freely and voluntarily 
executed the same, and relinquished her dower to the lands and tenements 
therein mentioned, and also all her rights and advantages under and by 



A CITIZEN OF THE UNITED STATES. 295 

virtue of all laws of this State relating to the exemption of homesteads, 
without compulsion of her said husband, and that she does not wish to 
retract the same. 

Given under my hand and seal, this day of 

a.d. 186 

(Signature.) (Seal. ) 



(24.) 

QUITCLAIM DEED. LONG FORM, WITH WAIVER OF HOMESTEAD. 

This indenture, Made the day of in the yeai 

of our Lord one thousand eight hundred and sixty- between (name, 

residence, and occupation of the grantor, and name of the grantor'' s wife') , 
parties of the first part, and (name, residence, and occupation of the grantee), 
party of the second part, 

Witnesseth, That the said party of the first part, for and in considera- 
tion of dollars in hand paid by the said party of the second 
part, the receipt whereof is hereby acknowledged, and the said party of 
the second part, for ever released and discharged therefrom, have remised, 
released, sold, conveyed, and quitclaimed, and by these presents do remise, 
release, sell, convey, and quitclaim, unto the said party of the second part, 
his heirs and assigns for ever, all the right, title, interest, claim, and demand 
which the said party of the first part have in and to the following-described 
lot , piece , or parcel of land, to wit (here describe carefully the land or 
premises granted, as directed in Form 19). 

To have and to hold the same, Together with all and singular 
the appurtenances aud privileges thereunto belonging, or in any wise there- 
unto appertaining; and all the estate, right, title, interest, and claim what- 
ever of the said party of the first part, either in law or equity, to the only 
proper use, benefit, and behoof of the said party of the second part, his 
heirs and assigns for ever. 

And the said parties of the first part hereby expressly waive, release, 
and relinquish unto the said party of the second part, his heirs, executors, 
administrators, and assigns, all right, title, claim, interest, and benefit 
whatever in and to the above-described premises, and each and every part 
thereof, which is given by or results from all laws of this State pertaining 
to the exemption of homesteads. 

And the said parties of the first part, for themselves and their heirs, 
executors, and administrators, do covenant, promise, and agree to and 
with the said party of the second part, their heirs, executors, administra 
tors, and assigns, that they have not made, done, committed, executed, oi 
suffered 'any act or acts, thing or things, whatsoever, whereby, or by means 
whereof, the above mentioned and described premises, or any part or parcel 
thereof, now are, or at any time hereafter shall or may be, impeached, 
charged, or incumbered, in any way or manner whatsoever. 



296 THE PROPERTY RIGHTS OF 

In witness whereof, The said party of the first part hereunto set 
their hands and seals, the day and year above written. 

{Signature of grantor.') {Seal.) 

(Signature of wife of grantor.) (Seal.) 
Signed, sealed and delivered in presence of 

State op 

County. 

I, in and for said county, and the State aforesaid, do 

hereby certify that (name of the grantor) , being personally known to me as 
the same person whose name is subscribed to .the foregoing instrument of 
writing, appeared before me this day in person, and acknowledged that he 
signed, sealed, and delivered the said instrument of writing as his free and 
voluntary act, for the uses and purposes therein set forth. 

And the said (name of the wife) , wife of the said (name of the grantor) , 
having been by me examined separate and apart, and out of the hearing of 
her husband, and the contents and meaning of the said instrument of writ- 
ing having been by me fully made known and explained to her, and she 
also by me being fully informed of her rights under the homestead laws 
of this State, acknowledged that she had freely and voluntarily executed 
the same, and relinquished her dower to the lands and tenements therein 
mentioned, and also all her rights and advantages under and by virtue of 
all laws of this State relating to the exemption of homesteads, without 
the compulsion of her said husband, and that she does not wish to retract 
the same. 

Given under my hand and official seal, this day of 

a.d. 186 

(Signature.) (Seal.) 

(25.) 

DEED, WITH COVENANT AGAINST GRANTOR, WITHOUT RELEASE OF 
HOMESTEAD OR DOWER. 

This indenture, Made the day of in the year 

one thousand eight hundred and between (name of the grantor) , 

of the first part, and (name of the grantee), of the second part, witnesseth, 
That the said party of the first part, for and in consideration of the sum 
of lawful money of the United States of An erica, to him in 

hand paid by the said party of the second part, at or before the ensealing 
and delivery of these presents, the receipt whereof is hereby acknowl- 
edged, ha granted, bargained, sold, aliened, remised, released, conveyed, 
and confirmed, and by these presents do grant, bargain, sell, alien, re- 
mise, release, convey, and confirm, unto the said party of the second part, 
and to his heirs and assigns for ever, all (here describe carefully the land or 
vremises granted, as directed in Form 19). 

Together with all and singular the tenements, hereditaments, and appur- 
tenances thereunto belonging or in any wise appertaining, and the reversion 
and reversions, remainder and remainders, rents, issues, and profits thereof. 



A CITIZEN OF TEE UNITED STATES. 297 

And also all the estate, right, title, interest, property, possession, claim, 
and demand whatsoever, as well in law as in equity, of the said party of 
the first part, of, in, or to the above-described premises, and every part 
and parcel thereof, with the appurtenances. To have and to hold all and 
singular the above mentioned and described premises, together with the 
appurtenances, unto the said party of the second part, and his heirs and 
assigns, for ever. 

And the said (name of the grantor), for himself and his heirs, executors, 
and administrators, does hereby covenant, promise, and agree to and with 
the said party of the second part, and his heirs and assigns, that he has not 
made, done, committed, executed, or suffered any act or acts, thing or 
things whatsoever, whereby or by means whereof the above mentioned 
and described premises, or any part or parcel thereof, now are, or at any 
time hereafter shall or may be, impeached, charged, or incumbered in any 
manner or way whatsoever. 

In witness whereof, The said party of the first part has hereunto 
set his hand and seal, the day and year first above written. 

(Signature.) (Seal.) 

Sealed and delivered in the presence of 

State of ^ 

[-ss. 
County. ) 

I, in and for said county, and the State aforesaid, do hereby 

certify, that (name of the grantor), being personally known to me as the same 
person whose name is subscribed to the foregoing instrument of writing, 
appeared before me this day in person, and acknowledged that he signed, 
sealed, and delivered the said instrument of writing as his free and volun- 
tary act, for the uses and purposes therein set forth. 

Given under my hand and oflicial seal, this day of 

a.d. 186 

(Signature). (Seal) 

(26.) 

SEPARATE RELINQUISHMENT OF HOMESTEAD AND DOWER IN LAND 
SOLD UNDER EXECUTION. 

Know all men by these presents, That we (name and residence of 
the debtor), and (name of his wife), wife of the said of the county 

of and State of parties of the first part, for the 

sum of one dollar to us paid by (name of the purchaser) , of the county of 
and State of party of the second part, the receipt 

whereof is hereby acknowledged, do hereby agree and consent to let the 
said party of the second part levy and sell, under a certain execution, in 
favor of them, the said party of the second part, and against (name of the 
creditor, or the defendant in the suit in which the execution issued), now in the 
hands of the sheriff of the county of and State of 

and dated the day of a.d. 186 the following- 

described tract of land, situated in the county of and State of 



298 THE PROPERTY RIGHTS OF 

to wit (here describe carefully the land or premises granted, as directed in 
Form 19), (and being the same land heretofore held, used, and occupied 
by the said parties of the first part as a homestead), hereby waiving, re- 
leasing, relinquishing, and surrendering to and in favor of said party of 
the second part, under the said levy and sale on said execution, all the 
right, title, claim, interest, and benefit which we, the said parties of the 
first part, and each of us, have in and to said premises, by virtue of any 
and all homestead exemption laws, now or heretofore in force in the State 
of and more especially " An act to exempt homesteads from 

sale on execution," now in force in the State of 

Witness our hands and seals, this the day of a.d. 186 

(Signature.) (Seal.) 
(Signature.) (Seal.) 



State of 

County 



} 



I, in and for said county, in the State aforesaid, do hereby 

certify that personally known to me as the same persons 

whose names are subscribed to the annexed instrument, appeared before 
me this day in person, and acknowledged that they signed, sealed, and 
delivered the said instrument of writing as their free and voluntary act, 
for the uses and purposes therein set forth. 

And the said (the name of the wife), wife of the said having 

been by me examined, separate and apart, and out of the hearing of her 
husband, and the contents and meaning of the said instrument of writing 
having been by me fully made known and explained to her, and she also 
by me being fully informed of her rights under the homestead laws of 
this State, acknowledged that she had freely and voluntarily executed the 
same, and relinquished her dower to the lands and tenements therein men- 
tioned, without compulsion of her said husband, and that she does not 
wish to retract the same. 

Given under my hand and seal, this day of a.d. 186 

(Signature.) (Seal) 
(27.) 

FULL WARRANTY DEED, BY INDENTURE, WITHOUT RELEASE OF 
HOMESTEAD OR DOWER. 

This indenture, Made the day of in the year 

one thousand eight hundred and between (name, residence, and 

occupation of the grantor), party of the first part, and (name, residence, 
and occupation of the grantee), party of the second part, witnesseth, that 
the said party of the first part, for and in consideration of the sum of 
lawful money of the United States, to him in hand paid by 
the said party of the second part, at or before the ensealing and delivery of 
these presents, the receipt whereof is hereby acknowledged, and the said 
party of the second part, and his heirs, executors, and administrators, for 
ever released and discharged from the same, by these presents, has granted, 



A CITIZEN OF THE UNITED STATES. 299 

bargained, sold, aliened, remised, released, conveyed, and confirmed, and 
by these presents does grant, bargain, sell, alien, remise, release, convey, 
and confirm, unto the said party of the second part, and to his heirs and 
assigns for ever, all {here describe carefully the land or premises granted, as 
directed in Form 19). 

Together with all and singular the tenements, hereditaments, and 
appurtenances thereunto belonging, or in any wise appertaining, and the 
reversion and reversions, remainder and remainders, rents, issues, and 
profits thereof. And also all the estate, right, title, interest, property, 
possession, claim, and demand whatsoever, as well in law as in equity, of 
the said party of the first part, of, in, and to the same, and every part and 
parcel thereof, with the appurtenances: To have and to hold the above 
granted, bargained, and described premises, with the appurtenances, unto 
the said party of the second part, and his heirs and assigns, to his and their 
own proper use, benefit, and behoof for ever. 

And the said (name of the grantor), for himself and his heirs, executors, 
and administrators, does covenant, grant, and agree to and with the said 
party of the second part, and his heirs and assigns, that the said (name of 
the grantor), at the time of the sealing and delivery of these presents, is 
lawfully seised, in his own right, of a good, absolute, and indefeasible 
estate of inheritance, in fee-simple, of and in all and singular the above 
granted and described premises, with the appurtenances thereunto belong- 
ing; and has good right, full power, and lawful authority to grant, bar- 
gain, sell, and convey the same, in manner aforesaid: And that the said 
party of the second part, and his heirs and assigns, shall and may at all 
times hereafter, peaceably and quietly, have, hold, use, occupy, possess, 
and enjoy the above-granted premises, and every part and parcel thereof, 
with the appurtenances, without any let, suit, trouble, molestation, evic- 
tion, or disturbance of the said party of the first part, or his heirs or 
assigns, or of any other person or persons lawfully claiming or to claim 
the same: and that the same now are free, clear, discharged, and unin- 
cumbered of and from all former and other grants, titles, charges, estates, 
judgments, taxes, assessments, and incumbrances, of what nature or kind 
soever. 

And also that the said party of the first part, and his heirs, and all and 
every person or persons whomsoever, lawfully or equitably deriving any 
estate, right, title, or interest, of, in, or to the hereinbefore granted prem- 
ises, by, from, under, or in trust for him or them, shall and will, at any 
time or times hereafter, upon the reasonable request, and at the proper 
costs and charges in the law, of the said party of the second part, his heirs 
and assigns, make, do, and execute, or cause to be made, done, and exe- 
cuted, all and every such further and other lawful and reasonable acts, 
conveyances, and assurances in the law, for the better and more effectually 
vesting and confirming the premises hereby granted or so intended to be. 
in and to the said party of the second part, his heirs and assigns, for ever, 
as by the said party of the second part, his heirs or assigns, or his or their 
counsel learned in the law shall be reasonably advised or required. And 
the said party of the first part, for himself and his heirs , the above described 
and hereby granted and released premises, and every part and parcel 



300 THE PROPERTY RIGHTS OF 

thereof, with the appurtenances, unto the said party of the second part, 
and his heirs and assigns, against the said party of the first part, and his 
heirs , and against all and every person and persons whomsoever, lawfully 
claiming or to claim the same, shall and will warrant and by these presents 
for ever defend. 

In witness whereof, The said party of the first part has hereunto set 
his hand and seal, the day and year first above written. 

(Signature.} (Seal.) 
Sealed and delivered in the presence of 

State of 1 

f-ss. 
County of ) 

On the day of in the year one thousand eight 

hundred and before me personally came (the name of the grantor), 

who is known to me to be the individual described in, and who executed, 
the foregoing instrument, and acknowledged that he executed the same, as 
his own free act and deed. 

(Signature.) 

(28.) 

WARRANTY DEED. SHORT FORM, WITH RELEASE OF HOMESTEAD 

AND DOWER. 

This indenture, Made this day of in the year 

of our Lord one thousand eight hundred and between (name, 

residence, and occupation of grantor, and name of his wife), of the first part, 
and (name, residence, and occupation of grantee) , of the second part, wit- 
nesseth, that the said party of the first part, in consideration of the sum of 
dollars in hand paid (the receipt whereof is hereby acknowl- 
edged), have granted, bargained, and sold, and by these presents do grant, 
bargain, and sell, unto the said party of the second part, his heirs and 
assigns, all that piece or parcel of land situate in in the county 

of and State of to wit (here describe carefully the 

land or premises granted, as directed in Form 19). 

Together with the appurtenances thereunto belonging; and all the 
estate, right, title, interest, claim, and demand of the said party of the 
first part herein. 

And the said (names of grantor and of his wife) , parties of the first part, 
hereby expressly waive, release, relinquish, and convey unto the said party 
of the second part, and his heirs, executors, administrators, and assigns, 
all right, title, claim, interest, and benefit whatsoever in and to the above- 
described premises, and each and every part thereof, which is given by or 
results from any and all laws of this State pertaining to the exemption of 
homesteads. 

And the said (names of grantor and of his wife) , for themselves and their 
heirs, executors, and administrators, do covenant, grant, bargain, and 
agree to and with the said party of the second part, and with his heirs and 
assigns, that the above-bargained premises in the quiet and peaceable pos- 



a CITIZEN OF THE UNITED STATES. 301 

session of the said party of the second part, and his heirs and assigns, the 
said party of the first part shall and will warrant and for ever defend. 

In witness whereof, The said parties of the first part have hereunto 
set their hands and seals, the day and year first above written. 

(Signature of grantor.) (Seal.") 

(Signature of wife of grantor.) (Seal.) 

Signed, sealed, and delivered in presence of 



State op 

County. 



i 



I, in and for said county, do hereby certify that (name of 

grantor) , who is personally known to me as the same person whose name is 
subscribed to the annexed deed, appeared before me this day in person, 
and acknowledged that he signed, sealed, and delivered the said instrument 
of writing, as his free and voluntary act, for the uses and purposes therein 
set forth. 

And the said (name of the wife of grantor), wife of the said (name of the 
grantor*) , having been by me examined separate and apart, and out of the 
hearing of her husband, and the contents and meaning of the said instru- 
ment of writing been by me fully made known and explained to her, and 
she also by me having been fully informed of her rights, under the home- 
stead laws of this State, acknowledged that she had freely and voluntarily 
executed the same, and relinquished her dower to the lands and tenements 
therein mentioned, and also all her rights and advantages, under and by 
virtue of any and all laws of this State relating to the exemption of home- 
steads, without compulsion of her said husband, and that she does not wish 
to retract the same. 

Given under my hand and ofiicial seal, this day of 

A.D. 186 

(Signature.) (Seal.) 

(29.) 

WARRANTY DEED, WITH COVENANT AGAINST NUISANCES, WITHOUT 
RELEASE OF HOMESTEAD OR DOWER. 

This indenture, Made the day of in the year one 

thousand eight hundred and between (name, residence, and occu- 

pation of the gi'antor), party of the first part, and (name, residence, and 
occupation of the grantee) , party of the second part, witnesseth, that the said 
party of the first part, for and in consideration of the sum of 
lawful money of the United States, to him in hand paid by the said party 
of the second part, at or before the ensealing and delivery of these presents, 
the receipt whereof is hereby acknowledged, and the said party of the 
second part, his heirs, executors, and administrators, for ever released and 
discharged from the same, by these presents has granted, bargained, sold, 
aliened, remised, released, conveyed, and confirmed, and by these presents 
does grant, bargain, sell, alien, remise, release, convey, and confirm, unto 



302 THE PROPERTY RIGHTS OF 

the said party of the second part, and to his heirs and assigns for ever, 
all (here describe carefully the land or premises granted, as directed in 
Form 19). 

Together with all and singular the tenements, hereditaments, and 
appurtenances thereunto belonging, or in any wise appertaining, and the 
reversion and reversions, remainder and remainders, rents, issues, and 
profits thereof: and also all the estate, right, title, interest, property, pos- 
session, claim, and demand whatsoever, as well in law as in equity, of the 
said party of the first part, of, in, and to the same, and every part and 
parcel thereof, with the appurtenances, to have and to hold the above 
granted, bargained, and described premises, with the appurtenances, unto 
the said party of the second part, and his heirs and assigns, to his and 
their own proper use, benefit, and behoof for ever. 

And the said party of the first part, for himself and for his heirs, execu- 
tors, and administrators, does hereby covenant, grant, and agree to and 
with the said party of the second .part, and his heirs and assigns, that the 
said party of the first part, at the time of the sealing and delivery of these 
presents, is lawfully seised in his own right of a good, absolute, and inde- 
feasible estate of inheritance, in fee-simple of and in all and singular the 
above granted and described premises, with the appurtenances to them 
belonging; and has good right, full power, and lawful authority to grant, 
bargain, sell, and convey the same, in manner aforesaid. 

And that the said party of the second' part, and his heirs and assigns, 
shall and may at all times hereafter peaceably and quietly have, hold, use, 
occupy, possess, and enjoy the above granted premises, and every part and 
parcel thereof, with the appurtenances, without any let, suit, irouble, mol- 
estation, eviction", or disturbance of the said party of the first part, or his 
heirs or assigns, or of any other person or persons lawfully claiming or to 
claim the same; and that the same now are free, clear, discharged, and 
unincumbered of and from all former and other grants, titles, charges, 
estates, judgments, taxes, assessments, and incumbrances, of what nature 
or kind soever. 

And also that the said party of the first part, and his heirs, and all and 
every person or persons whomsoever, lawfully or equitably deriving any 
estate, right, title, or interest, of, in, or to the hereinbefore granted prem- 
ises, by, from, under or in trust for him or them, shall and will, at any 
time or times hereafter, upon the reasonable request, and at the proper 
costs and charges in the law, of the said party of the second part, his 
heirs and assigns, make, do, and execute, or cause to be made, done, and 
executed, all and every such further and other lawful and reasonable acts, 
conveyances, and assurances in the law, for the better and more effectually 
vesting and confirming the premises hereby granted, or so intended to be, 
in and to the said party of the second part, his heirs and assigns, for ever, 
as by the said party of the second part, his heirs or assigns, or his or their 
counsel learned in the law, shall be reasonably advised or required: and 
the said party of the first part, for himself and for his heirs, the above- 
described and hereby granted and released premises, and every part and 
parcel thereof, with the appurtenances, unto the said party of the second 
part, and his heirs and assigns, against the said party of the first part, and 



A CITIZEN OF THE UNITED STATES. 303 

his heirs, and against all and every person and persons whomsoever, law- 
fully claiming or to claim the same, shall and will warrant and by these 
presents for ever defend. 

And the said party of the second part, for himself and for his heirs 
and assigns, does hereby covenant to and with the said party of the first 
part, and with his heirs, executors, and administrators, that neither the 
said party of the second part, nor his heirs or assigns, shall or will at any 
time hereafter erect or permit upon any part of the said lot, any slaughter- 
house, smith-shop, forge, furnace, steam-engine, brass-foundry, nail or 
other iron factory, or any manufactory of gunpowder, glue, varnish, vitriol, 
ink, or turpentine, or for the tanning, dressing, or preparing skins, hides, 
or leather, or any brewery, distillery, livery-stable, or buildings for any 
noxious or dangerous trade or business. 

In witness whereof, The parties to these presents have hereunto 
interchangeably set their hands and seals, the day and year first above 
written. 

(Signature.) (Seal.) 
(Signature.) (Seal.) 

Sealed and delivered in presence of 



State of 



> ss. 



County of 

On this day of in the year one thousand eight 

hundred and before me personally came (the name of the party 

of the first part, who is the grantor), who is known by me to be the individ- 
ual described, and who executed the foregoing instrument, and then and 
there acknowledged that he executed the same as and for his own deed. 

(Signature.) 

(30.) 

BOND FOR A DEED. 

Know all men by these presents, That I (name of the obligor), 
of the county of and State of am held and firmly 

bound to (name of the obligee), of the county of and State of 

in the sum of dollars, to be paid to said (name of 

obligee) , or his executors, administrators, or assigns, to the payment whereof 
I bind myself, my heirs, executors, and administrators, firmly by these 
presents. Sealed with my seal, and dated the day of 

a.d. 18 

The condition of this obligation is that if I the said (name of the 
obligor), upon payment of dollars, and interest thereon, as 

agreed and promised by said (name of the obligee) , agreeably to his prom- 
issory note, dated 18 and made payable as follows, to wit 
(here set forth the note. If there be no note from the obligee, omit this part), 
shall convey to said (name of the obligee), or his heirs, executors, or assigns, 
for ever, the following-described real estate, situate, lying, and being in the 
county of and State of to wit (here describe care- 



304 THE PROPERTY RIGHTS OF 

fully the land or premises granted, as described in Form 19), deed or deeds 
in common form, duly executed and acknowledged, and in the mean time 
shall permit said (name of the obligee') to occupy and improve said premises 
for his own use, then this obligation shall be void, otherwise it shall remain 
in full force. 

(Signature.) (Seal.) 
Signed, sealed, and delivered, in presence of 

State of 1 

>ss. 
County of ) 

Be it remembered, That on this day of a.d. 

18 before the undersigned, a notary public (or other magistrate), within 
and for the county of aforesaid, personally came (name of the 

obligor) , who is personally known to me to be the same person whose name 
is subscribed to the foregoing instrument of writing, as the obligor therein, 
and acknowledged the same to be his free act and deed, for the purposes 
therein mentioned. 

In testimony whereof, I have hereunto set my hand and affixed my 
official seal at my office in the day and year first above written. 

(Signature.) (Seal.) 

(31.) 
CONTRACT FOR SALE OF LAND, WITH PENAL OBLIGATION. 

Articles of agreement, Made and concluded this day of 

a.d. 18 between of the county of 

and State of of the one part, and of the county 

of and State of of the other part, as follows : — 

The said (name of the party of the first part) , for the consideration 
hereinafter mentioned, does for himself and for his heirs, covenant and 
agree with the said (name of the party of the second part), and his heirs 
and assigns, by these presents, that he the said party of the first part, shall 
and will, on or before the day of a.d. 18 at the 

proper costs and charges of the said party of the first part {or of the second 
part, if that is agreed) , his heirs and assigns, by good and lawful deed or 
deeds, well and sufficiently grant, convey, and assure unto the said party of 
the second part, his heirs and assigns, in fee-simple, clear of all incum- 
brances, all that certain tract or parcel of land lying, being, and situate in 
the county of State of as follows, to wit (here 

describe carefully the land or premises granted, as directed in Form 19). 

In consideration whereof, The said (here the name of the party of 
the second part), for himself and his heirs, does covenant and agree with the 
said party of the first part, and with his heirs and assigns, by these pres- 
ents, that he, the said party of the second part, and his heirs, or some of 
them, shall and will, on the execution and delivery of the said deed or deeds 
as aforesaid, well and truly pay, or cause to be paid, unto the said party 
of the first part, or his heirs and assigns, the sum of dollars, 

in the manner following, to wit (set forth the terms and times of payment as 



A CITIZEN OF THE UNITED STATES. 305 

agreed on). And upon (set forth the time agreed on), the said party of the 
first part shall give to the said party of the second part possession of the 
aforesaid premises. 

And for the true performance of all and every the covenants and agree- 
ments aforesaid, each of the said parties bindeth himself, his heirs, execu- 
tors and administrators, unto the other, his executors, administrators, and 
assigns, in the penal sum of dollars. 

In witness whereof, The said parties have hereunto set their hands 
and seals, the day and year first above written. 

(Signature.) (Seal.) 
(Signature.) (Seal.) 

Signed, sealed, and delivered, in presence of us, 

(If it is intended that this contract should be recorded, — in almost all cases 
it should be, — an acknowledgment by both parties should follow ; and the record 
should be like that in the next Form.) 



(32.) 

POWER OF ATTORNEY TO SELL LANDS. 

Know all men by these presents, That I, the undersigned (name 
of the selling party) , of the town (or city) of county of 

and State of have this day made, constituted, and appointed, 

and do by these presents make, constitute, and appoint (name of attorney), 
of the town (or city) of in the county of and State 

of my true and lawful attorney, for me and in my name, to 

sell and dispose of, absolutely, in fee-simple, the following described lot, 
tract, or parcel of land, or any part thereof, situate, lying, and being in 
the county of and State aforesaid, to wit (here describe care- 

fully the land or premises granted, as directed in Form 19), for such price or 
sum of money, and to such person or persons as he shall think fit and con- 
venient; and also for me and in my name, and as my act and deed, to sign, 
execute, acknowledge, and deliver, such deed or deeds, and conveyance or 
conveyances, for the absolute sale or disposal thereof, or of any part 
thereof, with such clause or clauses, covenant or covenants, and agreement 
or agreements, to be therein contained, as my said attorney shall think fit 
and expedient; hereby ratifying and confirming all such deeds, convey- 
ances, bargains, and sales which shall at any time hereafter be made by 
said attorney touching or concerning the premises. 

In testimony whereof, I have hereunto set my hand and seal, on 
this day of a.d. 18 



State of 



j- ss. 



(Signature.) (Seal.') 



County of 

Be it remembered, That on this day a.d. 18 

before the undersigned, a notary public (or other magistrate), within and 

20 



306 



THE PROPERTY RIGHTS OF 



for the county of and State of personally came 

(the name of the principal), who is personally known to me to be the same 
person whose name is subscribed to the foregoing instrument of writing, 
and acknowledged the same to be his free act and deed, for the purposes 
therein mentioned. 

In witness whereof, I have hereto set my hand, and affixed my 



official seal, at my office in 



State of 



County of 



the day and year, first above written. 
(Signature.) {Seal.) 

ss. In the Recorder's Office. 



I, clerk of the Circuit Court, and ex-officio recorder of 

said county {or whoever else is the recording officer), do hereby certify that 
the within instrument of writing was on the ' day of 

a.d. 18 duly filed for record in this office, and is recorded in the records 
of this office, in book at page 

In witness whereof, I have hereunto set my hand and affixed the 
seal of said court, at this day of 

A D. 18 

Recorder. 
Per Deputy. 

(33.) 

TRUST-DEED FOR THE BENEFIT OF A WIFE OR SOME OTHER 

PERSON. 

This deed, Made and entered into this day of 

eighteen hundred and sixty- by and between (name, residence, 

and occupation of the grantor), party of the first part, and (the name, resi- 
dence and occupation of the trustee), party of the second part, and (name of 
the wife or any person who is to have the benefit of the trust), party of the 
third part, witnesseth: That the said party of the first part, in considera- 
tion of the sum of dollars, to him in hand paid by the said 
party of the third part, the receipt of which is hereby acknowledged, and 
the further sum of one dollar to him paid by the said party of the second 
part, the receipt of which is hereby also acknowledged, do, by these pre- 
sents, give, grant, sell, transfer, convey, and assign unto the said party of the 
part, the following-described tract or parcel of land, that is to 
say (here describe the premises carefully, as directed in Form 19). 

To have and to hold the same, With all the rights, privileges, and 
appurtenances thereto belonging, or in any wise appertaining, unto him 
the said party of the second part, his heirs and assigns for ever: In trust, 
however, to and for the sole and separate use, benefit, and behoof of 
wife of the said (or the name of the son or daughter, or any 
other person, may be substituted for that of the wife), and the said party 
of the second part hereby covenants and agrees to and with the said 
the party of the third part, that he will suffer and permit her 
(or him), without let or molestation, to have, hold, use, occupy, and enjoy 



A CITIZEN OF THE UNITED STATES. 307 

the aforesaid premises, with all the rents, issues, profits, and proceeds aris- 
ing therefrom, whether from sale or lease, for her own sole nse and benefit, 
separate and apart from her said husband, and wholly free from his con- 
trol and interference, debts, and liabilities, courtesy, and all other interests 
whatsoever; and that he will, at any and all times hereafter, at the request 
and direction of the said (name of the party of the third part) , expressed in 
writir g, signed by her (or him) or by her (or his) authority, bargain, sell, 
mortgage, convey, lease, rent, convey by deed of trust for any purpose, or 
otherwise dispose of said premises, or any part thereof, to do which full 
power is hereby given, and will pay over the rents, issues, profits, and pro- 
ceeds thereof to the said party of the third part, and that he will, at the death 
of the said party of the third part, convey or dispose of the said premises, 
or such part thereof as may then be held by him under this deed, and all 
profits and proceeds thereof, in such manner, to such person or persons, 
and at such time or times, as the said party of the third part shall, by her 
(or his) last will and testament, or any other writing signed by her, or by 
her authority, direct or appoint; and in default of such appointment, that 
he will convey such premises to (here state what it is intended shall be done 
with the property at the death of the party of the third part if he or she die 
intestate) . And the said party of the third part shall have power at any 
time hereafter, whenever she (or he) shall from any cause deem it neces- 
sary or expedient, by an instrument in writing under her (or his) hand and 
seal, and by her (or him) acknowledged, to nominate and appoint a trustee, 
or trustees, in the place and stead of the party of the second part above 
named; which trustee or trustees, or the survivor of them, or the heirs of 
such survivor, shall hold the said real estate upon the same trust as above 
recited; and upon the nomination and appointment of such new trustees, 
the estate in trust hereby vested in said party of the second part shall 
thereby be fully transferred and vested in the trustee or trustees so 
appointed by the said party of the third part. And said party of the first 
part hereby covenants to warrant and defend the title to the said real 
estate against the lawful claims of all persons whomsoever, to the said 
parties of the second and third parts, their heirs and assigns. And the 
said party of the second part covenants faithfully to perform and fulfil the 
trust herein created. 

In testimony whereof, The said parties have hereunto set their 
hand and seal the day and year first above written. 

(Signature.) (Seal.) 
(Signature.) (Seal.) 
(Signature.) (Seal.) 

Tiik State of 



y ss. 



County of 

Be it remembered, That on the day of 

eighteen hundred and sixty- before me, the undersigned 

came (the persons who execute the instrument) , who are personally known to 
me to be the same persons whose names are subscribed to the foregoing 
instrument of writing, as parties thereto, and severally acknowledged the 
same to be their free act and deed for the purposes therein mentioned. 

(Signatured 



308 THE PROPERTY RIGHTS OF 



(34.) 

TRUST-DEED TO SECURE PAYMENT OF A NOTE, WITHOUT RELEASE 
OF HOMESTEAD OR DOWER. 

This deed, Made and entered into this day of 

eighteen hundred and by and between {name and occupation of the 

grantor who is the debtor), of the county of State of part 

of the first part, and (name and occupation of the trustee), of the county of 

State of part of the second part, and 

(name and occupation of the creditor for whose benefit the deed is made) , of 
the county of State of part of the third part : 

Witnesseth, That the said party of the first part, in consideration 
of the debt and trust hereinafter mentioned and created, and of the sum of 
one dollar to him paid by the said party of the second part, the receipt of 
which is hereby acknowledged, does by these presents grant, bargain, and 
sell, convey, and confirm, unto the said party of the second part, the fol- 
lowing-described real estate, situate, lying, and being in the county of 
and State of to wit (here describe carefully the 

land or premises granted, as described in Form 19) . 

To have and to hold the same, with the appurtenances, to the 
party of the second part, and to his successor or successors in this trust, 
and to him and his heirs and his and their grantees and assigns, for ever. 

In trust, however, for the following purposes : Whereas the said 
party of the first part has this day made, executed, and delivered to the 
said party of the third part, his promissory note of even date herewith, 
by which he promises to pay to the said (name of the creditor) , or order, 
for value received, y^ dollars, in {the days or months when the 

note is payable) . 

Now, therefore, if the said party of the first part, or any one for 
him, shall well and truly pay off and discharge the debt and interest ex- 
pressed in the said note and every part thereof, when the same becomes 
due and payable, according to the true tenor, date, and effect of said note , 
then this deed shall be void, and the property hereinbefore conveyed shall 
be released at the cost of the said party of the first part; but, should the 
said first party fail or refuse to pay the said debt, or the said interest, or 
any part thereof, when the same or any part thereof shall become due and 
payable, according to the true tenor, date, and effect of said note , then the 
whole shall become due and payable, and this deed shall remain in force; 
and the said party of the second part, or in case of his absence, death, 
refusal to act, or disability in anywise, the (then) acting sheriff of 
county, at the request of the legal holder of the said note, 

may proceed to sell the property hereinbefore described, or any part 
thereof, at public vendue, to the highest bidder, at in the 

of county for cash, first giving 

days' public notice of the time, terms, and place of sale, and of the prop- 
erty to be sold, by advertisement in some newspaper printed and published 
in the of and upon such sale shall execute and 



A CITIZEN OF THE UNITED STATES. 309 

deliver a deed in fee-simple of the property sold to the purchaser or pur- 
chasers thereof, and receive the proceeds of said sale ; and any statement 
of facts or recital by the said trustee, in relation to the non-payment of 
the money secured to be paid, the advertisement, sale, receipt of the money, 
and the execution of the deed to the purchaser, shall be received as prima 
facie evidence of such fact; and such trustee shall, out of the proceeds of 
said sale, pay, first, the cost and expenses of executing this trust, includ- 
ing legal compensation to the trustee for his services, and next shall apply 
the proceeds remaining over to the payment of said debt and interest, or 
so much thereof as remains unpaid, and the remainder, if any, shall be 
paid to the said party of the first part, or his legal representatives. And 
the said party of the second part covenants faithfully to perform and ful- 
fil the trust herein created, not being liable or responsible for any mischance 
occasioned by others. 

In witness whereof, The said parties have hereunto set their hands 
and seals, the day and year first above written. 

(Signature of party of the first part.) (Seal.) 

(Signature of party of the second part.) (Seal.) 
(Signature of party of the third part.) (Seal.) 

Signed, sealed, and delivered, in presence of us 



State of 



>- ss. 



County of 

Be it remembered, That on this day of 

a.d. 18 before the undersigned, a within and for the county 

of and State of personally came (names of all the 

parties executing the deed) , who are personally known to me to 

be the same persons whose names are subscribed to the foregoing instru- 
ment of writing, as parties thereto, and acknowledged that they executed 
the same for the uses and purposes therein mentioned. 

In testimony whereof, I have hereto set my hand and affixed my 
official seal, at my office in the day and year first above written. 

(Signature.) (Seal.) 



(35.) 

DEED OF TRUST TO SECURE A DEBT. FULLER FORM, AND WITH 
RELEASE OF DOWER. 

This deed, Made and entered into this day of 

eighteen hundred and sixty- by and between (name and occu- 

pation of the debtor who is grantor), and (name of the wife of the grantor) , 
of (residence) , parties of the first part, and (name of the grantees who are 
the trustees), of (residence) , parties of the second part, and (name, residence, 
and occupation of the creditor for whose benefit the trust is created), of 
party of the third part, witnesseth, that the said parties of the 
first part, in consideration of the debt and trust hereinafter mentioned and 



310 THE PROPERTY RIGHTS OF 

created, and of the sum of one dollar to them paid by the said parties of 
the second part, the receipt of which is hereby acknowledged, do by these 
presents grant, bargain, and sell, convey, and confirm, unto the said parties 
of the second part, the following-described real estate, to wit {here describe 
carefully the land or premises granted, by metes and bounds, as directed in 
Form 19.) 

To have and to hold the same with the appurtenances, to the said 
parties of the second part, and to the survivor of them, and to their suc- 
cessor hereinafter designated, and to the assigns of the said parties of the 
second part, or of said survivor, or of said successor and his heirs, for ever. 
In trust, however, for the following purpose: Whereas the said (name 
of the grantor and debtor), (litre describe the debt, and if a promissory note is 
given, describe that, or set forth a copy of it), and has also agreed and cove- 
nanted, to and with the said party of the third part and his indorsees or 
assignees, to cause all taxes and assessments, general and special, to be 
paid within the times required by law, whenever imposed upon said prop- 
erty, and has also further covenanted and agreed, to and with said party 
of the third part, his indorsees or assignees, that he will keep the improve- 
ments upon said property constantly insured in some good and responsible 
insurance office or offices, to be approved by said party of the third part, 
his indorsees or assignees, in a sum not less than dollars, until 

said notes are (or note is) fully paid, and will assign the policy or policies 
of insurance to said party of the third part, his indorsees or assignees, with 
full power to demand, receive, and collect any and all moneys accruing 
under said insurance, and the same to apply to the payment of said notes 
and the interest that may accrue thereon, unless otherwise paid, when the 
same become due, and has also covenanted and agreed, to and with said 
party of the third part, his indorsees or assignees, that there shall not, at 
any time while said notes remain unpaid, be any mechanics' liens filed or 
taken, upon the real estate herein described, or upon the buildings which 
now are, or may hereafter be, erected upon said real estate, and that should 
said party of the first part fail or neglect to pay said taxes, when the same 
are by law due and payable, or fail or neglect to effect insurance and assign 
the policy or policies as above provided, or fail or neglect to keep said real 
estate free from mechanics' liens, the said party of the third part, his in- 
dorsees or assignees, may, at his option, consider the notes above mentioned 
and described as having each and all become due and payable, though not 
then due by the tenor and effect thereof, and may require the said parties 
of the second part, or the survivor of them, or their successor in trust, to 
sell the property above described as hereinafter provided, or may pay said 
taxes, or the premium for such insurance, or the amount of said mechan- 
ics' liens, and the amount or amounts so paid, together with interest 
thereon, at the rate of ten per cent per annum, shall be taken and con- 
sidered as a part of the amount secured hereby, and to be paid and 
refunded out of the proceeds of sale, should such sale be made, as herein- 
after provided. 

Now, if the said notes be well and truly paid, as the same severally 
become due and payable, according to the tenor and effect of said notes, 
and each of them, and if the said covenants and agreements in regard to 



A CITIZEN OF THE UNITED STATES. 311 

taxes, insurance, and mechanics' liens be faithfully kept and performed, 
and all moneys paid by said party of the third part, his indorsees or assign- 
ees, on account of said taxes, insurance, and mechanics' lien's, are refunded, 
with the interest thereon, as above provided, then this deed shall be void, 
and the property hereinbefore conveyed shall be released at the cost of the 
said parties of the first part; but should default be made in the payment of 
the said notes, or either of them, or any part of either of them, or of the 
interest that may accrue thereon, or any part thereof, as the same severally 
become due and payable, or if the said parties of the first part fail or 
neglect to pay said taxes, when due and payable, or to insure the buildings 
on said property, or to keep the same free from mechanics' liens, as provided 
in the foregoing covenants and agreements, or to refund to said party of 
the third part, his indorsees or assignees, the amount paid by him or them 
for said taxes, insurance, or mechanics' liens, with interest thereon, as above 
provided, then this deed shall remain in force, and the said parties of the 
second part, or either of them, or the survivor of them, or in the event of 
the death of both of them, or absence from this State, or their refusal to 
act, or other disqualification for the performance of the duties of this 
trust, then, at the request of the holder of said notes, the sheriff of the 
county of for the time being (who shall thereupon become the 

successor of said trustees, and of the survivor of them, to the title of said 
property, and the same become vested in him, in trust, for the purposes 
and objects of these presents, with all the powers, duties, and obligations 
thereof), may proceed to sell said described property, or any part thereof, 
at public vendue, to the highest bidder, for cash, at the (state the place of 
sale), first giving twenty days' public notice of the time, terms, and place 
of said sale, and the property to be sold, by advertisement in some news- 
paper printed in the English language, and published in the county of 
and upon such sale, the said parties of the second part, or either of them, 
or the survivor of them, or their successor in trust, the sheriff of said 
county, as the case may be, shall execute and deliver a deed or deeds, in 
fee-simple, of the property sold, to the purchaser or purchasers thereof (a 
recital wherein of the request of the holder of said notes that they should 
proceed to sell, of the publication of said notice, and in case of sale by the 
sheriff of said county, of the happening of any or either of the events 
making him successor in this trust, shall be received in all courts of law 
or equity, and to all intents and purposes, as full and sufficient proof 
thereof), and shall receive the proceeds of said sale, out of which shall be 
paid, first, the cost and expenses of executing this trust, including com- 
pensation to said trustee, or said sheriff, for their or his services, next the 
amount paid by said party of the third part, or his indorsees or assignees, 
for taxes, insurance, or mechanics' liens, with ten per cent per annum 
interest thereon, from the date of the payment thereof, and next, the 
amount remaining unpaid upon the principal note above described, together 
with all of the interest notes then due, and so much of the interest note 
next falling due, as may be necessary to satisfy the interest on said prin- 
cipal note at the rate of per cent per annum, from the date when 
the preceding interest note became due, up to the day of sale, it being 
distinctly understood and agreed between the parties hereto that the fail 



312 THE PROPERTY RIGHTS OF 

ure to pay any one of said notes, principal or interest, when due and pay- 
able, shall cause the principal note to become immediately due and payable, 
though not then due by the terms, tenor, or effect thereof, and the re- 
mainder, if any, shall be paid to the said parties of the first part, or their 
legal representatives. 

And the said parties of the second part covenant faithfully to perform 
and fulfil the trust herein created. 

In witness whereof, The said parties have hereunto set their hands 
and seals, the day and year first above written. 

(Signature of grantor.} (Seal.) 

(Signature of grantor's wife.) (Seal.) 
(Signature of trustee.) (Seal.) 

(Signature of other trustee.) (Seal.) 
(Signature of creditors.) (Seal.) 

Signed, sealed, and delivered, in presence of 

State of ~) 

> ss. 
County of ) 

Be it remembered, That on this day of 

eighteen hundred and sixty- before me, the undersigned, 

came (names of the parties who execute the deed), who are personally known 
to me to be the same persons whose names are subscribed to the foregoing 
instrument of writing, as parties thereto, and acknowledged the 

same to be their act and deed, for the purposes therein mentioned. 

And the said having been by me first made 

acquainted with the contents of said instrument, on an examination sepa- 
rate and apart from her husband, acknowledged that she executed the 
same freely, and without compulsion or undue influence of her said 
husband. 

In testimony whereof, I have hereunto set my hand and seal of 
office, the day and year first above written. 

(36.) 

TRUST-DEED TO SECURE A NOTE. SHORTER FORM, BUT WITH 
WARRANTY AND RELEASE OF HOMESTEAD AND DOWER. 

This indenture witnesseth, that (name, res'dence, and occupation 
of grantor), and (name of the wife of grantor), wife oi the grantor herein, in 
consideration of the indebtedness hereinafter mentioned, and one ($1) 
dollar to them paid by (name, residence, and occupation of the trustee), 
grantee , the receipt whereof is hereby acknowledged, do hereby grant, 
bargain, sell, remise, release, and convey unto the said grantee , the fol- 
lowing-described lot , piece , or parcel of land, situate in the 
county of and State of to wit (here describe care- 

fully the land or premises granted, as directed in Form 19). 

To have and to hold the same, with all the privileges thereunto or 
in any wise appertaining, and all the estate, right, title, interest, claim, or 



A CITIZEN OF THE UNITED STATES. 313 

demand in and to the same, either now or which maybe hereafter acquired, 
unto the said grantee, his heirs and assigns. In trust, nevertheless, for the 
following purposes: 

Whereas, the said (name of the grantor), grantor herein, is justly 
indebted upon a certain promissory note, bearing even date herewith, pay- 
able to the order of (here describe the note) . 

Now, in case of default in the payment of said note or any part thereof, 
or the interest accruing thereon, according to the tenor and effect thereof, 
or in the payment of any taxes or assessments, ordinary or special, which 
may be levied or assessed against said premises during the continuance 
hereof, on the application of the legal holders of the said note, the said 
grantee (full power being hereby given), or his legal representatives, after 
having advertised such sale days in a newspaper published in 

or by posting up written or printed notices in four (4) public 
places in the county where said premises are situate (personal notice being 
hereby expressly waived) , shall sell the said premises or any part thereof, 
and all the right and equity of redemption of the said grantor, or his heirs, 
executors, administrators, or assigns therein, at public vendue, to the 
highest bidder for cash, at at the time appointed in the said 

advertisement, or may adjourn the sale from time to time at discretion, 
and as the attorney of the said grantor, for such purpose hereby constituted 
irrevocable, or in the name of the said grantee or his legal representatives, 
shall execute and deliver to the purchaser or purchasers thereof, deeds for 
the conveyance in fee of the premises sold, and shall apply the proceeds of 
sale (1st) to the payment of all advances made by the said party of the 
second part for taxes and assessments; and expenses for advertising, selling, 
and conveying as aforesaid, including attorney's fees, and (2d) the amount 
due on said note, (3d) rendering the overplus, if any there be, to the said 
grantor or legal representatives, at the office of the said grantee in 

and it shall not be the duty of the purchaser to see to the 
application of the purchase-money. 

And the said (names of the grantor and of his wife) , parties of the first 
part, hereby expressly waive, release, and relinquish unto the said party of 
the second part, the said grantee, his heirs, executors, administrators, and 
assigns, all right, title, claim, interest, and benefit whatever, in and to the 
above-described premises, and each aud every part thereof, which is given 
by or results from all laws of this State pertaining to the exemption of 
homesteads; provided, that the said grantor and his heirs and assigns may 
hold and enjoy said premises, and the rents, issues, and profits thereof, 
until default shall be made as aforesaid; and that when the said note and 
all expenses accruing hereby shall be fully paid, the said grantee or his 
legal representatives shall reconvey all the estate acquired hereby in the 
said premises, or any part thereof, then remaining unsold, to (and at the 
cost of) the said grantor, or his heirs or assigns. 

And the said grantor covenants with the said grantee and with his legal 
representatives and assigns that he is seized in fee of the said premises, and 
has good right to convey the same in form aforesaid , that they are free 
from all liens or incumbrances of whatever name or nature, and fc hat he 



314 THE PROPERTY RIGHTS OF 

will warrant and defend the same against all claims whatsoever, and will 
pay all taxes or assessments levied or assessed on the said premises, or any 
part thereof, during the continuance hereof, and pay the same ten days 
before the day of sale thereof. 

Witness the hands and seals of the said {names of grantor and his.wife), 
this day of a.d. 186 

(Signature of grantor.) (Seal.) 

(Signature of wife of grantor.) (Seal.) 



In presence of 
State of 



Vss. 



County. 

On the day of eighteen hundred and sixty- 

bef ore me of the county of in the State of 

appeared (name of the grantor) , personally known to me to be the real person 
whose name subscribed to the foregoing deed of trust, as having 

executed the same, and then acknowledged the execution thereof as 
free act and deed for the uses and purposes herein mentioned. 

And the said (name of the wife of grantor) (who is personally' known to 
me to be the same person who subscribed the said instrument of writing), 
having had the contents of the said instrument made known and fully 
explained to her, and she also by me being fully informed of her rights 
under the homestead laws of the State, and being by me examined, sep- 
arate and apart from her said husband, did acknowledge said instrument 
to be her free act and deed; that she executed the same, and relinquished 
her dower in the lands and tenements therein mentioned, and also all her 
rights and advantages under and by virtue of all laws of this State relating 
to the exemption of homesteads, voluntarily and freely, and without the 
compulsion of her husband, and that she does not wish to retract. 

Given under my hand and official seal, this day of 

a.d. 186 

(Signature. (Seal.) 

(37.) 

DEED FROM TRUSTEES. 

This deed, Made and entered into this day of in 

the year eighteen hun dred and by and between (names of trustees) , 

party of the first part, and (name, residence, and occupation of grantee), 
party of the second part, witnesseth, that whereas (name of the party who 
conveyed the estate to the trustees), by deed dated the day of 

186 recorded in the recorder's office of county, State of 

in book conveyed the property hereinafter described 

in trust to said (name of trustees) to secure the payment of certain promis- 
sory notes in said deed described; and whereas (here describe the non-pay- 
ment or other default which has authorized the sale by the trustees) and the 
party herein of the first part, at the request of the legal holder of said 
promissory notes acting in pursuance of the provisions of said deed of 



A. CITIZEN OF THE UNITED STATES. 315 

trust, and having first given days' public notice of the time, 

terms, and place of sale, and of the property to be sold, by an advertise- 
ment inserted on the day of a.d. in the 
a daily newspaper printed in the city of and 
continued to the day of sale (as will appear by the copy of said advertise- 
ment and affidavit of publication thereof hereto annexed as a part of this 
deed) , did proceed to sell the property described in said deed at public 
vendue to the highest bidder for cash, at in the city of 
on the day of 186 between the hours 
of ten o'clock in the morning and five o'clock in the afternoon of said day, 
when and where the same was struck off to (the name of the purchaser who 
is the grantee) as the highest and last bidder therefor, at the price and sum 
of dollars, full payment whereof is hereby acknowledged: now, 
said party of the first part, by virtue of the proceedings aforesaid, and in 
consideration of the sum of dollars to him in hand paid by said 
party of the second part, does by these presents bargain, sell, and convey 
to said (name of the grantee) all the right, title, and interest (which by 
virtue of said trust-deed and the proceedings aforesaid he may or can bar- 
gain, convey, or sell) in and to the property described in said deed of trust, 
to wit: (here describe the land or premises granted in the same way in which 
they are described in the deed of trust under which the trustees act). 

To have and to hold the said described premises unto said (name of 
the purchaser) , and unto his heirs and assigns, for ever. 

In witness whereof, the said party of the first part has hereto set his 
hand and seal, the day and year first herein above written. 

{Signature.) (Seal.) 



In presence of 
State of 



(Signature.) (Seal.) 



J 



County. 

Be it remembered, that on this day of a.d. 

186 before me, the undersigned personally came 

who are to me personally known to be the same persons whose names are 
subscribed to the foregoing instrument of writing as parties thereto, and 
they acknowledged the same to be their act and deed for the purposes 
therein mentioned. 

(Signature.) 

(38.) 

DEED OF MASTER IN CHANCERY. 

This indenture, Made this day of a.d. 18 

between (name of grantor), Master in Chancery, in and for the county of 
and State of of the first part, and (name of 

grantee) of the second part, witnesseth: That whereas, at the 
term of the court of the said county of and State 

of in the year of our Lord a.d. 18 in a certain suit and 



316 THE PROPERTY RIGHTS OF 

proceedings in chancery, pending in said court, wherein 
were complainant , and were defendant , to obtain a 

decree for the sale of the property hereinafter described, and for other 
relief, it was ordered, adjudged, and decreed by the court, that {here set 
forth the decree under which the sale is made) ; and the Master in Chancery, 
in and for the county of and State of • was appointed 

to execute the said decree, and to make, execute, and deliver to the com- 
plainant a deed to the said premises as aforesaid, conveying to (the name, 
residence, and occupation of the grantee), all the interest and title of the 
defendant to said premises. 

NOW, THEREFORE, KNOW ALL MEN BY THIS DEED, That I, 

Master in Chancery as aforesaid, in consideration of one dollar to me paid 
by the said party of the second part, the receipt whereof I acknowledge 
before the execution hereof, and by virtue of the decree aforesaid, have 
granted, 'bargained, and sold, and do hereby grant, bargain, and sell, unto 
the said party of the second part, his heirs and assigns, for ever, the follow- 
ing-described real estate, lying in the county of and State of 
to wit: (here describe carefully the land or premises granted, as 
directed in Form 19). 

To have and to hold the said premises, with all the appurtenances 
thereto belonging, unto the said party of the second part, his heirs and 
assigns, for ever. 

In testimony whereof, The said Master in Chancery of 

county, in the State of has hereto set his hand and 

seal, the day and year first above written. 

(Signature.) (Seal.) 

In presence of 

State of 

County. 

I, clerk of the county court in and for the county of 

and State of do hereby certify that the above-named 

whose name appears signed to the foregoing deed, is personally known to 
me to be the same person described therein, and acknowledged to me that, 
as Master in Chancery aforesaid, he executed the said deed freely for the 
uses and purposes therein mentioned. 

Given under my hand and official seal, at this 

day of a.d. 18 

(Signature.) Clerk. (Seal.) 



(39.) 

SHERIFF'S DEED ON EXECUTION, IN USE IN THE WESTERN STATES. 

Whereas (the name of the plaintiff in the suit in which the execution is- 
sued) did, at the term, in the year eighteen hundred and sixty- 
of the court for the county of in the 
State of recover a judgment against (name of the defendant in 



A CITIZEN OF THE UNITED STATES. 317 

that suit) for the gum of and costs of suit, upon which judgment 

an execution was issued, dated on the day of in the year 

eighteen hundred and sixty- directed to the sheriff of 

county, to execute, and by virtue of said execution (name of the sheriff), 
of then sheriff of said county, levied upon the lands hereinafter 

described, and the same were struck off and sold to (name of the purchaser 
at the sheriff's sale), he being the highest and best bidder therefor, and the 
time and place of the sale thereof having been duly advertised according 
to law. 

And the said (name of the purchaser) having duly assigned his certificate 
of purchase to (name of the grantee) . 

Now, therefore, know all by this deed, That I (name of the 
sheriff) , sheriff of said county of in consideration of the premises, 

have granted, bargained, and sold, and do hereby convey to the said (name 
of the grantee), his heirs and assigns, the following-described tract of land, 
to wit: (here describe carefully the land or premises granted, as directed in 
Form 19). 

To have and to hold the said described premises, with all the appur- 
tenances thereto belonging, to the said (name of the grantee) and his heirs 
and assigns for ever. 

Witness my hand and seal, this day of in the 

year of our Lord one thousand eight hundred and sixty- 

(Signature.) (Seal.) 

Sheriff of Count]/. 

In presence of 

State of 1 

>-ss. 
County of ) 

I, clerk of the court of county, do 

certify that sheriff of county, personally known to 

me to be the real person whose name is subscribed to the within annexed 
deed, this day acknowledged before me that he executed the said deed, as 
such sheriff, voluntarily and freely, for the use and purposes therein set 
forth. 

Given under my hand, and the seal of said court, this day 

of eighteen hundred and sixty- 

(Signature.) Clerk. (Seal.) 



(40.) 

SHERIFF'S DEED, IN USE IN NEW ENGLAND. 

Know all men by these presents, That I (name of the deputy sheriff 
selling) , of in the county of and State of 

and a deputy sheriff under (name of the sheriff), Esq., sheriff of said county, 
having, on the day of in the year of our Lord one 

thousand eight hundred and by virtue of a writ of execution, 



318 THE PROPERTY RIGHTS OF 

which was issued upon a judgment, recovered at the term of the court 
holden at within and for the county of on the 

in the year of our Lord eighteen hundred and by 

(name of the plaintiff in the suit) , of in the county of 

against {name of the defendant in that suit), of in the county 

of for the sum of dollars and cents 

damage and costs of suit taxed at dollars and 

cents, seized and taken all the' right in equity which the said 
had on the day of in the year of our Lord eighteen 

hundred and being the time when the same was attached on 

mesne process of redeeming the following-described mortgaged real estate, 
to wit (here describe carefidly the land or premises granted, as directed in 
Form 19); and having on the day of last, being 

thirty days at least before the time of the sale hereinafter mentioned, 
given notice in writing to the said (name of the defendant ) of the time and 
place of sale, and having posted up notifications thereof in one public 
place in said town of and in one public place in each of the 

towns of and being two towns adjoining said 

town of and also having caused an advertisement of the time 

and place of sale to be published three weeks successively, before the day 
of sale, in the public newspaper called the printed at 

in said county of on the day of in 

the year of our Lord eighteen hundred and made sale of said 

right in equity of redemption at public auction, to (name of the purchaser), 
of in he being the highest bidder for the same, 

for the sum of dollars. Now, therefore, in consideration of 

said sum of dollars to me paid by the said (name of the pur- 

chaser), the receipt whereof I do hereby acknowledge , I have given, granted, 
bargained, and sold, and do, by these presents, give, grant, bargain, sell, 
and convey, to the said (name of the purchaser) , his heirs and assigns, for 
ever, all the right in equity which the said (name of the defendant) had of 
redeeming the aforesaid mortgaged real estate, at the time aforesaid. To 
have and to hold the same to the said (name of purchaser) , his heirs and 
assigns, to his and their use for ever; subject, however, to be redeemed 
agreeably to the law in such case made and provided. And I, the said 
(name of grantor) , in my said capacity of deputy sheriff, do covenant with 
the said (name of purchaser) as aforesaid, that, in making said sale, and in 
every thing concerning the same, I have complied with and observed the 
rules and requisitions of the law for making sales of rights in equity to 
redeem real estate. But I do not warrant or defend to the said (name of 
the purchaser) that the said (name of the defendant) had any right, title, or 
interest in said estate at the time aforesaid. 

In witness whereof, I, the said in my said capacity of 

deputy sheriff, have hereunto set my hand and seal, this day 

of in the year of our Lord one thousand eight hundred and 

(Signature.) (Seal.) 
Signed, sealed, and delivered in presence of 



A CITIZEN OF THE UNITED STATES. 319 

ss. 18 . Then the above-named 

personally appeared, and acknowledged the above instrument by him 
signed to be his free act and deed. Before me, 

Justice of the Peace, 

(41.) 

SHERIFF'S TAX-DEED, IN USE IN THE WESTERN STATES. 

Know all men by these presents, That whereas, at the 
term, a. d. 18 of the Court of county, a judg- 

ment was obtained in said court, in favor of the State of against 

the following-described lot , piece , or parcel of land, for the sum 
herein specified, to wit, the sum of (here state in writing the amount of the 
tax) ; said sum being the whole amount of taxes, interest, and costs 
assessed upon said lot , piece , or parcel of land, for the year 18 

And whereas, on the day of a.d. 18 

(name of the collector of taxes), then collector of taxes of the county afore- 
said, by virtue of a precept or order issued out of the Court 
of the county aforesaid, dated the day of a.d. 
18 and directed to the said as aforesaid, did expose at public 
sale, at the court-house, in the county aforesaid, in conformity with all 
the requirements of the statutes in such case made and provided, the said 
lot , tract , or parcel of land above described, for the satisfaction of 
the judgment so rendered, as aforesaid. And whereas, at the time and 
place aforesaid (name of the purchaser) , of the county of and 
State of having offered to pay the aforesaid sum, amounting 
to the sum of dollars and cents, for the (here state 
what part or portion of the land was sold) of said lot , piece , or parcel 
of land, as follows, to wit, the sum of dollars cents, 
which was the least quantity of said lot , piece , or parcel of land bid 
for, the said lot , tract , or parcel of land was stricken off to (name 
of the purchaser) at that price. And whereas, the said purchaser has now 
made and delivered to me an affidavit of having complied with all the 
requirements of the statute and constitution of the State of 
necessary to entitle said purchaser to a deed for the premises so sold to him 
as aforesaid; and whereas the said (name of the purchaser) has duly as- 
signed the certificate of purchase of the land above described unto (the 
name of the grantee): Now, therefore, I, sheriff of the county 
of for and in consideration of the said above-named sum, 
amounting to the sum of dollars and cents, paid 
to (the collector of taxes), of said county of by the said (the 
name of the purchaser), at the time of the aforesaid sale, and in considera- 
tion of (the amount of costs and fees) Tw dollars to me paid by said (name 
of grantee), and by virtue of the statute in such case made and provided, 
have granted, bargained, and sold, and by these presents do grant, bargain, 
and sell, unto the said (name of the grantee), his heirs and assigns, the 
premises so sold as aforesaid, situated in the county of and 
State of to wit (here describe carefully the land or premises 



320 THE PROPERTY RIGHTS OF 

granted, by metes and bounds, and contents or quantity, or boundary marks or 
monuments). 

To have and to hold unto him, the said (the name of the grantee), 
heirs and assigns, for ever, subject, however, to all the rights of redemp- 
tion provided by law. 

In witness whereof, I, sheriff as aforesaid, by virtue of 

the authority aforesaid, have hereunto subscribed my name and affixed my 
seal, this day of a.d. 18 

(Signature.) (Seal.) 
Sheriff" of County. 

State of ") 

> ss. 
County of ) 

I, in and for said county and State, do certify that 

sheriff of said county, who is personally known to me to be the real per- 
son who executed and subscribed his name to the foregoing deed, appeared 
before me this day, and acknowledged that he had executed the same as 
such sheriff, freely and voluntarily, for the uses and purposes therein set 
forth. 

In attestation whereof, I have hereunto set my hand and attached the 
seal of our said court, at my office in in said county 

and State, this day of a.d. 18 

(Signature.) Clerk. (Seal.) 

(42.) 

DEED OF EXECUTOR, IN USE IN THE EASTERN STATES. 

Know all men by these presents, That whereas (name of the execu- 
tor) , in the county of and State of executor of the 
last will of (name of the testator) , late of deceased, by an order 
of the Court of Probate, held at within and for 
the county of on the day of in the 
year one thousand eight hundred and was licensed and em- 
powered to sell and pass deeds to convey certain real estate of the said 
deceased; and whereas, the said executor having given public 
notice of the intended sale, by causing notifications thereof to be published 
once a week, for three successive weeks, prior to the time of sale, in the 
newspaper called the printed at and having first 
taken the oath and given the bond by law in such cases required, did on the 

day of in the year one thousand eight hundred and 

pursuant to the order and notice aforesaid, sell by public auction the real 
estate of the said deceased hereinafter described, to (name, residence, and 
occupation of the purchaser) , for the sum of dollars y^, he 

being the highest bidder therefor. 

Now, therefore, know ye, That I, the said executor as 

aforesaid, by virtue of the power and authority in me vested as aforesaid, 
and in consideration of the aforesaid sum of dollars y^, paid 

by the said (name of purchaser) , the receipt whereof is hereby acknowl- 



A CITIZEN OF THE UNITED STATES. 321 

edged, do, by these presents, give, grant, sell, and convey unto the said 
(here describe carefully the land or premises granted, by metes and bounds, and 
contents or quantity, or boundary marks or monuments, and refer to the deed of 
the land to the testator, under which he held it). 

To have and to hold the afore-granted premises, with all the privi- 
leges and appurtenances to the same belonging, to him the said (name of 
purchaser), and his heirs and assigns, to his and their use and behoof for 
ever. And I, the said (name of executor), for myself and my heirs, execu- 
tors, and administrators, do hereby covenant with the said (name of 
purchaser) , and his heirs and assigns, that in pursuance of the order afore- 
said, I gave public notice of the said intended sale, in manner aforesaid, 
and that I took the oath and gave the bond by law required, previous to 
fixing on the time and place of sale. 

In witness whereof, I, the said executor as aforesaid, 

have hereunto set my hand and seal, this day of 

in the year of our Lord one thousand eight hundred and sixty- 

(Signature.) (Seal.) 

Signed, sealed, and delivered in presence of 

ss. a.d. 186 Then personally appeared the 

above-named execut and acknowledged the foregoing 

instrument to be free act and deed. 

Before me, 

Justice of the Peace. 

(43.) 

DEED OF EXECUTOR, IN USE IN THE MIDDLE STATES. 

This indenture, Made the day of in the year 

one thousand eight hundred and between (name of executor), 

executor of the last will of (name and residence of testator), of the first 
part, and (name, residence, and occupation of the purchaser, who is the 
grantee), of the second part, Witnesseth, that the said party of the first 
part, by virtue of the power and authority to him given in and by the 
said last will and testament, and for and in consideration of the sum of 
lawful money of the United States of America, to him in 
hand paid at or before the ensealing and delivery of these presents, by the 
said party of the second part, the receipt whereof is hereby acknowledged, 
and the said party of the second part, his heirs, executors, and adminis- 
trators, for ever released and discharged from the same by these presents, 
have granted, bargained, sold, aliened, released, conveyed, and confirmed, 
and by these presents do grant, bargain, sell, alien, release, convey, and 
confirm, unto the said party of the second part, and his heirs and assigns, 
for ever, all (here describe carefully the land or premises granted, by metes and 
bounds, and contents or quantity, or boundary marks, or monuments, and refer 
to the deed of the land to the testator, under which he held it). 

Together with all and singular the edifices, buildings, rights, mem- 
bers, privileges, advantages, hereditaments, and appurtenances to the same 
belonging or in any wise appertaining; and the reversion and reversions, 

21 



322 THE PROPERTY RIGHTS OF 

remainder and remainders, rents, issues, and profits thereof. And also all 
the estate, right, title, interest, claim, and demand whatsoever, both in 
law and equity, which the said testator had in his lifetime, and at the time 
of his decease, and which the said party of the first part hath, by virtue 
of the said last will and testament, or otherwise, of, in, and to the same, 
and every part and parcel thereof, with the appurtenances: To have and to 
hold the said premises above mentioned and described, and hereby granted 
and conveyed, or intended so to be, with the appurtenances, unto the said 
party of the second part, and his heirs and assigns, to his and their only 
proper use, benefit, and behoof for ever. And the said party of the first 
part, for himself and for his heirs, executors, and administrators, does for 
himself and for his heirs, executors, and administrators, covenant, grant, 
promise, and agree to and with the said party of the second part, and his 
heirs and assigns, that the said party of the second part, his heirs and 
assigns, shall and lawfully may from time to time, and at all times for 
ever hereafter, peaceably and quietly have, hold, use, occupy, possess, and 
enjoy all and singular the said hereditaments and premises hereby granted 
and conveyed, or intended so to be, with their and every of their appur- 
tenances, and receive and take the rents, issues, and profits thereof, to and 
for his and their own use and benefit, without any lawful let, suit, hin- 
derance, molestation, interruption, or denial whatsoever, of, from, or by 
them the said party of the first part, his heirs or assigns; or of, from, or 
by any other person or persons whomsoever lawfully claiming, or who shall 
or may lawfully claim hereafter, by, from, or under him, or by, from, or 
under his right, title, interest, or estate. And that free and clear, and 
freely and clearly discharged, acquitted, and exonerated, or otherwise well 
and sufficiently saved, defended, kept harmless, and indemnified by them, 
the said party of the first part, his heirs and assigns, of, from, and against 
all and all manner of former and other gifts, grants, bargains, sales, mort- 
gages, judgments, and all other charges and incumbrances whatsoever, 
had, made, committed, executed, or done by him the said party of the first 
part, or by, through, or with his acts, deeds, means, consent, procurement, 
or privity. 

In witness whereof, The parties to these presents have hereunto 
interchangeably set their hands and seals, the day and year first above 
written. 

{Signature of party of the first part.) (Seal.) 

(Signature of party of the second part.) (Seal.) 
Sealed and delivered in the presence of 

State op 

County. 

This day personally appeared before the undersigned (name and office 
of the magistrate) , within and for the county and State aforesaid (name of 
the executor), executor of the estate of (name of deceased), deceased, who 
personally known to me to be the person whose name as such is sub- 
scribed to the foregoing deed, as having executed the same, and acknowl- 
edged that he had as such executor subscribed to the foregoing deed, as 



A CITIZEN OF THE UNITED STATES. 323 

having executed the same, and acknowledged that he had as such executor 
executed the same for the uses and purposes therein expressed. 

In witness whereof, I have hereunto set my hand and seal, 

at my office in said county, this day of a.d. 18 

(Signature.) (Seal.) 

(44.) 
DEED OF ADMINISTRATOR OF INTESTATE. 

This indenture, Made this day of in the year 

of our Lord one thousand eight hundred and between (name 

and residence of administrator) , administrator of the goods and estate of 
(name of intestate), of who died intestate, party of the first 

part, and (name, residence, and occupation of the grantee), of the county 
of and State of party of the second part: 

Whereas, at the term, a.d. 18 of the court, 

within and for the county of and State of in a certain 

petition or cause therein pending, in which the said (name of the grantor), 
administrator of the goods and estate of (name of the deceased), deceased, 
was petitioner, and (names of the defendants who are minor children of the 
deceased, and of the widow of deceased, and of the guardian of the minors) , 
were defendants, the following order and decree were rendered, that is to 
say: 



>• ss. 
3 



State of 

County. 

In Court Term, a.d. 18 

(Name of the administrator) , administrator of the goods and estate of 
(name of deceased), deceased, vs. (names of the defendants, who should be 
the widow and heirs of the deceased) . 

And now comes the petitioner by his solicitor, and presents his petition 
herein, and it satisfactorily appearing to the court that the defendants have 
been duly served with summons herein by the sheriff of county, 

and that the defendants are non-residents of the State of and 

have been duly notified of this proceeding by publication as required by 
law, it is therefore ordered by the court that the said defendants be 
called. And they, being three times solemnly called, came not, nor any 
one for them, but herein failed and made default, which it ordered to be 
entered of record; and it further appearing to the court that the said 
(names of defendants who are minors), are minors, and have a guardian, to 
wit, the said (name of the guardian). And afterwards the said (name of 
guardian), as such guardian, comes and files his answer herein, neither 
admitting nor denying the allegations in said petition contained, but re- 
serving the right of said minor by requiring proof. And this cause having 
been brought on to be heard upon the petition herein taken as confessed by 
the answer of said guardian and the exhibits and proofs, and 



824 THE PROPERTY RIGHTS OF 

the testimony of (name of the witness or witnesses called in the case) , witness, 
duly sworn, who testified herein in open court, and it satisfactorily appear- 
ing to the court from the evidence that the said (name of the deceased) 
departed this life on or about the day of a.d. 18 

leaving (name of his widow) his widow, and (names of his children), his 
children and only heirs at law; that the petitioner herein was duly ap- 
pointed administrator of the goods and estate of said (name of deceased), 
deceased, and that letters of administration were duly granted to him by 
this court, bearing date on the day of a.d. 18 and 

the court having ascertained that said petitioner as aforesaid has made a 
just and true account of the condition of the estate of said deceased to 
this court, and that the personal estate of said deceased is not sufficient for 
the payment of the debts of the said (name of the deceased) , deceased ; and 
the court having found the amount of the deficiency aforesaid to be the 
sura of dollars, besides interest and costs, and it further ap- 

pearing to the court that the said (name of the deceased) died seised of the 
following-described real estate, situate in the county of and 

State of to wit (here describe carefully the land or premises 

granted, by metes and bounds, and contents or quantity, or boundary marks, or 
monuments, and refer to the deed of the land to the deceased, under which he 
held it), and the court having ascertained that it will be necessary to sell 
the said real estate to pay the deficiency aforesaid, with the expenses of 
administration now due and to accrue; it is therefore ordered, adjudged, 
and decreed, that the said petitioner proceed, according to law, to adver- 
tise and make sale of the real estate above described, or so much thereof 
as may be necessary to pay the debts now due from said estate, and the 
costs of administration now due and to accrue. And it is ordered and 
decreed by the court, that said sale shall be made on the following terms, 
viz. (here set forth the terms, place, time, and manner of the sale, as pre- 
scribed in the decree) , which terms shall be distinctly set forth in all the 
advertisements of said sale. 

It is further ordered that upon such a sale being made, said (name 
of said administrator) shall make and execute to the purchaser or pur- 
chasers of said real estate, good and sufficient deed or deeds to convey the 
interest of said deceased therein at the time of his decease, and that said 
(name of the administrator) report his action in the premises with all con- 
venient speed. And it is further ordered, that his cause stand continued 
for said report. 

And whereas, in pursuance of said order and decree, the said party 
of the first part did on the day of a.d. 18 be- 

tween the hours of ten o'clock in the forenoon and five o'clock in the after- 
noon of such day, at (place of sale), expose to sale by public vendue, to 
the highest bidder, the lands and real estate so ordered to be sold in said 
decree, having first given notice of the time, terms, and place of such sale, 
with a description of such lands and real estate, according to the terms and 
requirements of said order and decree, and of the statute regulating such 
sales, as will more fully and at large appear by the report of such sale, 
made by said party of the first part, as administrator as aforesaid, to the 
said court. 



A CITIZEN OF THE UNITED STATES. 325 

And whereas, at such sale, the said party of the second part became 
the purchaser of the following-described lands and real estate, being the 
highest bidder therefor, at the following price: that is to say (here state 
lohat part, or the whole, of the above-described lands were sold, and at what 
price) . 

Now, therefore, This indenture witnesseth, that the said party of the 
first part, by virtue of the order and decree aforesaid, and in consideration 
of the premises, and for the further consideration of the sum of 
dollars, to him in hand paid by the said party of the second part, the 
receipt of which is hereby acknowledged, has granted, bargained, sold, and 
conveyed, and by these presents does grant, bargain, sell, and convey, unto 
the said party of the second part, heirs and assigns, the lands and real 
estate last above described as having been sold to the said party of the 
second part, to have and to hold the same with all the appurtenances there- 
unto belonging or in any wise appertaining, to the only proper use, bene- 
fit, and behoof of the said party of the second part, and his heirs and 
assigns, for ever. And the said party of the first part, for the considera- 
tion aforesaid, covenants with the said party of the second part, and his 
heirs and assigns, that he has in all respects complied with the order and 
decree aforesaid, and with the directions of the law generally in such case 
made and provided. 

In witness whereof, The said party of the first part, as administra- 
tor as aforesaid, has hereunto set his hand and seal, the day and year first 
above written. 

(Signature.) (Seal.) 
Administrator of ( name of deceased) as aforesaid. 

In presence of 

State of 1 

>-ss. 
County. ) 

This day personally appeared before the undersigned, 
within and for the county and State aforesaid, executor of the 

estate of (name of deceased), deceased, who personally known to me 

to be the person whose name as such is subscribed to the foregoing deed, 
as having executed the same, and acknowledged that he had as such exec- 
utor subscribed to the foregoing deed, as having executed the same, and 
acknowledged that he had as such executor executed the same for the uses 
and purposes therein expressed. 

In witness whereof, I have hereunto set my hand and 
seal, at my office in said county, this day of a.d. 18 

(Signature.) (Seal.) 



(45.) 
DEED-POLL OF GUARDIAN OF A MINOR. * 

Know all men by these presents, That whereas (name of guardian 
and grantor), of in the county of and State of 



320 THE PROPERTY RIGHTS OF 

guardian of (name of the ward), a minor child of (name of the father of the 
minor) , by an order of the Probate Court, held at 

within and for county of on the day of 

in the year one thousand eight hundred and was 

licensed an I empowered to sell and pass deeds to convey certain real estate 
of the said minor; and whereas, I, the said guardian, haying given public 
notice of the intended sale, by causing notifications thereof to be published 
once a week, for three successive weeks, prior to the time of sale, hi the 
newspaper called the printed at and having first 

taken the oath and given the bond by law in such cases required, did on 
the day of in the year one thousand eight hundred 

and pursuant to the order and notice aforesaid, sell by public 

auction the real estate of the said minor hereinafter described, to (the name, 
residence, and occupation of the purchaser and grantee), for the sum of 
dollars y-g^, he being the highest bidder therefor. 

Now, therefore, know ye, That I, the said (name of the guardian 
and grantor) , guardian as aforesaid, by virtue of the power and authority in 
me vested as aforesaid, and in consideration of the aforesaid sum of 
dollars 1TU to me paid by the said the receipt 

whereof is hereby acknowledged, do, by these presents, give, grant, sell, 
and convey unto the said (name of the purchaser and grantee) a certain lot 
or parcel of land, situated, bounded, and described as follows (here describe 
the premises as directed in Form 19). 

To have and to hold the afore-granted premises, with all the privi- 
leges and appurtenances to the same belonging, to him the said (purchaser's 
name) and his heirs and assigns, to his and their use and behoof for ever. 
And I, the said (name of guardian), for myself, my heirs, executors, and 
administrators, do hereby covenant with the said (name of purchaser), and 
his heirs and assigns, that in pursuance of the order aforesaid, I gave pub- 
lic notice of the said intended sale, in manner aforesaid, and that I took 
the oath by law required, previous to fixing on the time and place of 
sale, and gave the bond previous to said sale. 

In witness whereof, I, the said guardian as aforesaid, 

have hereunto set my hand and seal, this day of 

in the year of our Lord one thousand eight hundred and 

(Signature.) (Seal.) 

Signed, sealed, and delivered in presence of 

ss. a.d. 18 Then personally appeared the above- 

named guardian, and acknowledged the foregoing instrument 

to be free act and deed. 

Before me, Justice of the Peace* 

(46.) 

DEED OF REFEREE ON FORECLOSURE, IN USE IN THE MIDDLE 

STATES. 
This indenture, Made the day of in the year 

one thousand eight hundred and between (name and residence 



A CITIZEN OF THE UNITED STATES. 327 

of the referee and grantor), a referee duly appointed as hereinafter men- 
tioned, of the first part, and (name, residence, and occupation of the grantee) , 
of the second part. 

Whereas, At a term of the (name of the court) court, on 

the day of one thousand eight hundred and it 

was among other things ordered and adjudged by the said court, in a cer- 
tain action then pending in the said court, between ( names of plaintiff and 
defendant in the action) . 

That all and singular the mortgaged premises mentioned in the com- 
plaint in said action, and in said judgment described, or so much thereof 
as might be sufficient to raise the amount due to the plaintiff for principal, 
interest, and costs in said action, and which might be sold separately, with- 
out material injury to the parties interested, be sold at public auction, 
according to the course and practice of said court, by or under the direc- 
tion of the said party of the first part as referee thereby, duly appointed 
for that purpose: that the said sale be made (here state the directions in the 
order of court as to the place and time of the sale) ; that the said referee give 
public notice of the time and place of such sale, according to the course 
and practice of said court, and that any of the parties in said action might 
become a purchaser or purchasers on such sale ; that the said referee exe- 
cute to the purchaser or purchasers of the said mortgaged premises, or 
such part or parts thereof as should be sold, a good and sufficient deed or 
deeds of conveyance for the same: 

And whereas, The said referee, in pursuance of the said judgment of 
the said court, did on the day of one thousand 

eight hundred and sell at public auction at (the place of sale) 

the premises in the said judgment mentioned, due notice of the time and 
place of such sale being first given, agreeably to the said judgment; at 
which sale the premises hereinafter described were struck off to the said 
party of the second part for the sum of dollars, that 

being the highest sum bidden for the same. Now this indenture witness- 
eth, that the said referee, the party of the first part to these presents, in 
order to carry into effect the sale so made by him as aforesaid, in pursu- 
ance of the judgment of the said court, and in conformity to the statute in 
such case made and provided, and also in consideration of the premises, 
and of the said sum of money, so bidden as aforesaid, being first duly paid 
by the said party of the second part, the receipt whereof is hereby acknowl- 
edged, hath bargained and sold, and by these presents doth grant and con- 
vey, unto the said party of the second part, the premises aforesaid, situate, 
bounded, and described as follows (describe here the premises sold, as directed 
in Form 19). 

To have and to hold all and singular the premises above mentioned 
and described, and hereby conveyed, or intended so to be, unto the said 
party of the second part, his heirs and assigns, to and for his and their 
only proper use, benefit, and behoof. 

In witness whereof, The said referee as aforesaid, hath 

hereunto set his hand and seal, the day and year first above written. 

(Signature.) (Seal.) 

Sealed and delivered in the presence of 



328 THE PROPERTY RIGHTS OF 

State of ") 

>-ss. 
County. ) 

On the day of one thousand eight hundred and 

before me came known to me to be the individual 

described in, and who executed, the above conveyance, and acknowledged 
that he executed the same. 

(Signature). 

(47.) 

DEED OF COLLECTOR OF TAXES. 

TO ALL PERSONS TO WHOM THESE PRESENTS SHALL COME, I {name 

of collector) , of in the county of and State of 

collector of taxes for said town of . duly chosen and qualified at 

the last annual meeting of the inhabitants of said town, held on the 
day of last past sends greeting : 

Whereas, The assessors of said town of {name of the town), in their list 
of assessments committed to me, the said (name of the collector), to collect, 
have assessed {name of the party for whose taxes the land is sold), a resident 
owner of a certain tract of land situated in said bounded and 

described as follows, viz. {describe the premises as directed in Form 19), the 
sum of {amount of tax) and 1WW dollars, as a tax on said premises for the 
year eighteen hundred and 

And whereas, I, the said (name of the collector), have demanded pay- 
ment of said tax of (name of party taxed) more than fourteen days before 
proceeding to advertise and sell as hereinafter set forth. 

And whereas, The said (name of the party taxed) has given no written 
authority to any inhabitant of said town, as his attorney, to pay the tax 
imposed on said land, and no mortgagee of said land has given written 
notice to the clerk of said town, that he the said mortgagee holds a mort- 
gage thereon, nor given written authority to any inhabitant of said town, as 
his attorney, to pay said tax. 

And whereas, I, the said having given public notice of 

the time and place of sale of the said land, for the non-payment of said 
tax, by an advertisement thereof three weeks successively in the newspaper 
called the printed and published in in said county, 

the last publication of said advertisement being one week before the time 
of said sale: also by posting a like notice on said land three weeks before 
the time of said sale : and also by posting a like notice (here state tohatever 
other places the notice was posted at), being two public places in said town, 
three weeks before the time of said sale, which notices severally contained 
the name of the said (name of the party taxed) and the amount of the tax 
assessed on said land; also a substantially accurate description of said land, 
did, on the day of instant, pursuant to the authority 

and notice aforesaid, no person appearing to pay said tax, and it being the 
opinion of me that the said land could not be conveniently divided and a 
part thereof set off without injury to the residue, and judging it to be most 
for the public interest to sell the whole of said land, sell, at public auction, 



.4 CITIZEN OF THE UNITED STATES. 329 

the said land abDve described, to (name of purchaser and grantee), for the 
sum of and TT q dollars, he being the highest bidder therefor. 

Now, therefore, know ye, That I, the said {name of the collector), by 
virtue of the authority in me vested as aforesaid, and in consideration of 
the aforesaid sum of and yqo dollars, to me paid by the said 

(name of the purchaser) , the receipt whereof is hereby acknowledged, do 
hereby give, grant, bargain, sell, and convey unto the said all 

that said tract or parcel of land above mentioned and described, with the 
appurtenances thereto belonging. 

To have and to hold the same to him, the said grantee, his heirs 
and assigns, to his and their use and behoof for ever; subject, nevertheless, 
to the right of redemption, according to law. 

And I, the said grantor, do covenant with the said grantee, his heirs 
and assigns, that in making the said sale as above set forth, I have com- 
plied with, observed, and obeyed all the provisions of law for the sale of 
real estate for the non-payment of taxes. 

In witness whereof, I, the said collector, have hereto set 

my hand and seal, this day of in the year eighteen 

hundred and 

(Signature.') (Seal.) 

Executed and delivered in the presence of 

State of 



.1 



ss. 
County. ) a.d. 18 

Then personally appeared the above-named collector, and 

acknowledged the above instrument to be his free act and deed. 

Before me, 

Justice of the Peace. 

(48.) 

DEED OF ASSIGNEE, IN USE IN THE WESTERN STATES. 

This indenture, Made this day of in the year 

of our Lord one thousand eight hundred and (a.d. 18 ) 

between (name, residence, and occupation of the assignee, who is the grantor), 
as assignee of (name, residence, and occupation of the assignor) , of the one 
part, and (name, residence, and occupation of the purchaser, who is grantee), 
of the other part: 

Whereas, The said (name of the assignor) being lawfully seised in his 
demesne, as of fee, among other things, of and in a certain lot, piece, or 
parcel of ground, situate in the county of and State of 

known and described as follows, to wit (here describe the premises, as in 
Form 19). And being so thereof seised, did, on or about the 
day of in the year one thousand eight hundred and 

(a.d. 18 ), enter into a written contract with the said party of the 
second part for the sale of the above-described premises for the sum of 
dollars. 



330 THE PROPERTY RIGHTS OF 

And whereas, The said {name of the assignor) did, by his certain 
deed of assignment, bearing date the day of a.t>. 

18 grant, bargain, sell, alien, remise, release, convey, assign, transfer, 

and set over (with other property) the above-described lot, piece, or parcel 
of ground unto the said party of the first part, his successors, executors, 
administrators, and assigns, for ever; in trust, nevertheless, to and for the 
uses and intent and purposes in said deed of assignment mentioned and set 
forth, reference thereto being had may fully and at large appear; which 
said deed of assignment is recorded in book page of 

deeds, in the office of the clerk of the Circuit Court of said 
county, and ex-officio recorder of deeds. 

And whereas, The said assignor did not comply with the 

said contract before the execution and delivery of the said deed of assign- 
ment to the said party of the first part. 

Now this indenture witnesseth, That the said {name of the assignee 
and grantor), assignee of said {name of the assignor), for and in consideration 
of the sum of dollars (being the balance of the purchase-money 

and interest due on said contract), unto him in hand paid by the said 
party of the second part, at and before the ensealing and delivery hereof, the 
receipt whereof is hereby acknowledged, by these presents does grant, 
bargain, sell, alien, release, and confirm unto the said party of the second 
part, and his heirs and assigns, all the above mentioned and described lot, 
piece, or parcel of ground, together with all and singular the rights, here- 
ditaments, and appurtenances thereunto belonging, or in any wise apper- 
taining, and all the estate, right, title, interest, property, claim, and 
demand whatever, that he, the said assignor, had and held at and immedi- 
ately before the execution and delivery of the said deed of assignment to 
said party of the first part, and also all the right, title, interest, property, 
claim, and demand whatever, that the said party of the first part acquired 
in, under, or by virtue of the said deed of assignment by said assignor, to 
him the said party of the first part. To have and to hold the same, together 
with all and singular the appurtenances and privileges thereunto belonging, 
or in any wise appertaining, and all the estate, right, title, interest, and 
claim whatsoever, either in law or equity, that said assignor had and held 
at the time of and immediately preceding the execution and delivery of 
said deed of assignment to the said party of the first part, and all the right, 
title, interest, and claim whatsoever of the said party of the first part, either 
in law or equity, to the only proper use,, benefit, and behoof of the said 
party of the second part, his heirs and assigns, for ever. 

In witness whereof, The said party of the first part has hereunto set 
his hand and seal, the day and year first above written. 

{Signature of assignee.) {Seal. ) 



J 



State of 

County. 

1, a in and for said county, in the State afore- 
said, do hereby certify that who is personally known to me as 
the real person whose name is subscribed to the within deed, appeared 



A CITIZEN OF THE UNITED STATES. 331 

before me this day in person, and acknowledged that he executed and 
delivered the said deed, as his free and voluntary act, for the uses and pur- 
poses therein set forth. 

Given under my hand and seal, this day of 

in the year of our Lord one thousand eight hundred and 
(a.d. 18 ). 

(Signature.} (Seal.) 

(48*.) 

ACKNOWLEDGMENT OF GRANTOR AND WIFE BEFORE COMMISSIONER 
FOR ANOTHER STATE. 

State of 1 

>-ss. 
County of ) 

Be it remembered, That on the day of one 

thousand eight hundred and before me, commis- 

sioner for the State of (name of the State of which he is commissioner) , resi- 
dent in the of duly appointed, commissioned, and 
sworn to take acknowledgments and proof of deeds and other writings in 
the State of to be used or recorded in the said State of (name 
of the State of which he is commissioner), and to administer oaths and affir- 
mations, and to take depositions in the said State of to be used 
within the said State of appeared (name of grantor) and (name 
of wife of grantor) his wife, who are satisfactorily proven to me to be the 
individuals described in, and who executed the within deed, from said 
(name of grantor) , and wife to (name of grantee) , by the oath of (witnesses 
to their identity), who being by me duly cautioned and sworn, deposed that 
he knew them, the individuals then present, to be the persons described in 
and who executed the within deed. The said and 
his wife, then and there acknowledged to me that they executed the said 
deed for the purposes therein mentioned; and the said (name of the wife) 
being examined by me privily, and apart from her said husband, and the 
contents and effect of the said deed being by me first duly explained to 
her, did then and there acknowledge that she executed the same for the 
purposes therein mentioned, freely and without compulsion of or from her 
said husband. 

In witness whereof, I have hereunto set my hand and affixed the seal 
of my office, on the day of in the year of our Lord 

one thousand eight hundred and 

(Signature.) (Seal.) 

(49.) 

A PROMISSORY NOTE, TO BE SECURED BY MORTGAGE. 

18 

for value received promise to pay to 

dollars, at with interest at the rate of 

per cent per annum 



332 THE PROPERTY RIGHTS OF 

This note is secured by a deed of mortgage of even date herewith, from 
to which is duly stamped according to the internal 

revenue law. 

$ (Signature.} 

(50.) 
BOND, TO BE SECURED BY A MORTGAGE. 

Know all men by these presents, That I {name of obligor), of 
in the county of and State of am 

held, bound, and obliged unto (name of obligee), of in the county 

of and State of in the sum of (penalty usually 

twice as much as the actual debt), to be paid to the said (the obligee), his 
executors, administrators, heirs, or assigns, and to this payment I hereby 
bind myself, my heirs, executors, and administrators, 'firmly by these 
presents. 

Sealed with my seal, this day of in the 

year 

The condition of the above obligation is such, that if I, the said 
(name of the obligor), or my heirs, executors, or administrators, shall pay 
or cause to be paid unto the said (name of the obligee) the sum of (here 
insert the amount of the debt or sum to be secured), on the day of 

in the year with interest at percent, 

payable six months from the date hereof, and every six months afterwards, 
until the said sum is paid, then the above obligation shall be void and of 
no effect; and otherwise it shall remain in full force. And I further agree 
and covenant, that if any payment of interest be withheld or delayed for 
days after such payment shall fall due, the said principal sum, 
and all arrearage of interest thereon, shall be and become due immediately 
on the expiration of days, at the option of said (name of the 

obligee) , or his executors or administrators. 

(Signature.) (Seal.) 

(Witness.) 

(51.) 

MORTGAGE WITHOUT POWER OF SALE AND WITHOUT WARRANTY, 
BUT WITH RELEASE OF HOMESTEAD AND OF DOWER. 

This indenture, Made this day of in the 

year of our Lord one thousand eight hundred and sixty- between 

(name, residence, and occupation of mortgagor) , and (name of wife), wife of 
said (name of mortgagor) , parties of the first part, and (name, residence^ 
and occupation of mortgagee) , party of the second part. 

Whereas, The said party of the first part is justly indebted to the said 
party of the second part, in the sum of secured to be paid bv 

a certain promissory note (or bond) (describe the note or bond). 

Now, therefore, this indenture witnesseth, That the said parties 
of the first part, for the better securing the payment of the money afore- 
said, with interest*thereon, according to the tenor and effect of the said 



A CITIZEN OF THE UNITED STATES. 333 

note (or bond) above mentioned; and also in consideration of the further 
sum of one dollar to us in hand paid by the said party of the second part, 
at the delivery of these presents, the receipt whereof is hereby acknowl- 
edged, have granted, bargained, sold, and conveyed, and by these presents 
do grant, bargain, sell, and convey, unto the said party of the second part, 
his heirs and assigns, for ever, all that (here describe the premises, as directed 
in Form 19). 

To have and to hold the same, Together with all and singular the 
tenements, hereditaments, privileges, and appurtenances thereunto belong- 
ing, or in any wise appertaining. And also all the estate, interest, and 
claim whatsoever, in law as well as in equity, which the parties of the first 
part have in and to the premises hereby conveyed unto the said party of 
the second part, and his heirs and assigns, and to their only proper use, 
benefit, and behoof. And the said parties of the first part hereby expressly 
waive, release, relinquish, and convey unto the said party of the second 
part, and his heirs, executors, administrators, and assigns, all right, title, 
claim, interest, and benefit whatever in and to the above-described prem- 
ises, and each and every part thereof, which is given by or results from all 
laws of this State pertaining to the exemption of homesteads. 

Provided always, and these presents are upon this express 
condition, That if the said party of the first part, or his heirs, executors, 
or administrators, shall well and truly pay or cause to be paid to the said 
party of the second part, or his heirs, executors, administrators, or assigas, 
the aforesaid sum of money, with such interest thereon, at the time and 
in the manner specified in the above-mentioned note (or bond), according 
to the true intent and meaning thereof, then in that case these presents 
and every thing herein expressed shall be absolutely null and void. 

In witness whereof, The said parties of the first part hereunto set 
their hand and seal the day and year first above written. 

(Signature of mortgagor.) (Seal.) 

(Signature of wife of mortgagor.) (Seal.) 

Signed, sealed, and delivered in presence of 

State of ^ 

>-ss. 
County. ) 

1, in and for the said county, in the State aforesaid, do 

hereby certify that (name of mortgagor), personally known to me as the 
same person whose name is subscribed to the foregoing mortgage, appeared 
before me this day in person, and acknowledged that he signed, sealed, and 
delivered the said instrument of writing as his free and voluntary act, for 
the uses and purposes therein set forth. 

And the said (name of wife), wife of the said (name of mortgagor), 
having been by me examined, separate and apart, and out of the hearing 
of her husband, and the contents and meaning of said instrument of 
writing having been by me made known and fully explained to her, and 
she also by me being fully informed of her rights under the homestead 
laws of this State, acknowledged that she had freely and voluntarily exe- 



334 THE PROPERTY RIGHTS OF 

cuted the same, and relinquished her dower to the lands and tenements 
herein mentioned, and also all her rights and advantages under and by 
virtue of all laws of this State relating to the exemption of homesteads, 
voluntarily and freely, and without the compulsion of her said husband, 
and that she does not wish to retract the same. 

Given under my hand and official seal, this day of 

a.d. 186 

{Signature.') {Seal.) 

(52.) 

MORTGAGE WITH POWER OF SALE, TO SECURE A BOND, WITHOUT 
RELEASE OF DOWER. 

This indenture, Made the day of in the year 

one thousand eight hundred and between (name, residence, and 

occupation of mortgagor), party of the first part, and (name, residence, 
and occupation of mortgagee), party of the second part : Whereas, the said 
(name of mortgagor) is justly indebted to the said party of the second part, 
in the sum of lawful money of the United States, secured to be 

paid by a certain bond or obligation bearing even date with these presents, 
in the penal sum of dollars, lawful money as aforesaid, condi- 

tioned for the payment of the said first-mentioned sum of (here state the 
amount due on the bond, and the time and terms of payment), as by the said 
bond or obligation, and the condition thereof, reference being thereunto 
had, may more fully appear. 

Now this indenture witnesseth, That the said party of the first 
part, for the better securing the payment of the said sum of money men- 
tioned in the condition of the said bond or obligation, with interest thereon, 
according to the true intent and meaning thereof, and also for and in con- 
sideration of the sum of one dollar to him in hand paid by the said party 
of the second part, at or before the ensealing and delivery of these presents, 
the receipt whereof is hereby acknowledged, has granted, bargained, sold, 
aliened, released, conveyed, and confirmed, and by these presents does 
grant, bargain, sell, alien, release, convey, and confirm, unto the said party 
of the second part, and to his heirs and assigns, for ever, all (here describe 
the premises, as directed in Form 19). 

Together with all and singular the tenements, hereditaments, and 
appurtenances thereunto belonging, or in any wise appertaining, and the 
reversion and reversions, remainder and remainders, rents, issues, and 
profits thereof; and also all the estate, right, title, interest, property, pos- 
session, claim, and demand whatsoever, as well in law as in equity, of the 
said party of the first part, of, in, and to the same, and eveiy part and 
parcel thereof, with the appurtenances : To have and to hold the above 
granted, bargained, and described premises, with the appurtenances, unto 
the said party of the second part, and his heirs and assigns, to his and 
their own proper use, benefit, and behoof for ever. 

Provided always, and these presents are upon this express condition, 
that if the said party of the first part, or his heirs, executors, or adminis- 
trators , shall well and truly pay unto the said party of the second part, or 



A CITIZEN OF THE UNITED STATES. 



his executors, administrators, or assigns, the said sum of money mentioned 
in the condition of the said bond or obligation, and the interest thereon, 
at the time and in the manner mentioned in the said condition, according 
to the true intent and meaning thereof, that then these presents, and the 
estate hereby granted, shall cease, determine, and be void. And the said 
(name of mortgagor), for himself, and his heirs, executors, and adminis- 
trators, does covenant and agree to pay unto the said party of the second 
part, or his executors, administrators, or assigns, the said sum of money 
and interest as mentioned above, and expressed in the condition of the said 
bond. And if default shall be made in the payment of the said sum of 
money above mentioned, or the interest that may grow due thereon, or 
of any part thereof, that then and from thenceforth it shall be lawful for 
the said party of the second part, or his executors, administrators, or 
assigns, to enter into and upon all and singular the premises hereby granted 
or intended so to be, and to sell and dispose of the same, and all benefit 
and equity of redemption of the said party of the first part, or his heirs, 
executors, administrators, or assigns therein, at public auction. And out 
of the money arising from such sale, to retain the principal and interest 
which shall then be due on the said bond or obligation, together with the 
costs and charges of advertisement and sale of the same premises, rendering 
the overplus of the purchase-money (if any there shall be) unto the said 
(name of mortgagor), party of the first part, or his heirs, executors, admin- 
istrators, or assigns, which sale so to be made shall for ever be a perpetual 
bar, both in law and equity, against the said party of the first part, and 
his heirs and assigns, and all other persons- claiming or to claim the prem- 
ises, or any part thereof, by, from, or under him or them, or any of 
them. 

In witness whereof, The parties to these presents have hereunto 
interchangeably set their hands and seals, the day and year first above 
written. 

(Signature of mortgagor.) (Seal.) 
(Signature of mortgagee.) (Seal.) 

Sealed and delivered in the presence of 

State of ) 

V ss. 
County of ) 

On the day of in the year one thousand eight 

hundred and before me personally came (names of both parties) , 

who are known to me to be the individuals described in, and who exe- 
cuted, the foregoing instrument, and acknowledged that they executed the 
same. 

(Signature.) 

(53.) 

MORTGAGE TO SECURE A DEBT, WITH POWER OF SALE. SHORT FORM. 

This indenture, Made the day of in the year one 

thousand eight hundred and between (name, residence, and occu- 



THE PROPERTY RIGHTS OF 



potion of mortgagor), party of the first part, and (name, residence, and 
occupation of mortgagee), party of the second part, witnesseth, that the said 
party of the first part, in consideration of the sum of (the amount of the 
debt) to him duly paid before the delivery hereof, has bargained and sold, 
and by these presents does grant and convey, to the said party of the second 
part, and his heirs and assigns, for ever, all (here describe the premises, as 
directed in Form 19), with the appurtenances, and all the estate, right, 
title, and interest of the said party of the first part therein. 

This grant is intended as a security for the payment of (here describe 
the debt), which payments, if duly made, will render this conveyance void. 
And if default shall be made in the payment of the principal or interest 
above mentioned, then the said party of the second part, or his executors, 
administrators, or assigns, are hereby authorized to sell the premises above 
granted, or so much thereof as will be necessary to satisfy the amount then 
due, with the costs and expenses allowed by law. 

In witness whereof, The said party of the first part has hereunto set 
his hand and seal, the day and year first above written. 

(Signature.) (Seal.) 
Sealed and delivered in the presence of 

State of ^ 

vss. 
County of ) 

On the day of in the year one thousand eight 

hundred and before me personally came (name of mortgagor), 

who is known to me to be the individual described in, and who executed, 
the foregoing instrument, and acknowledged that he executed the same, as 
his free act and deed. 



(Signature.) 



(54.) 



MORTGAGE TO SECURE A DEBT. FULLER FORM, WITH POWER OF 

SALE. 

This indenture, Made the day of in the year 

one thousand eight hundred and between (name, residence, and 

occupation of mortgagor), party of the first part, and (name, residence, 
and occupation of the mortgagee) , party of the second part : 

Whereas, The said party of the first is justly indebted to the said 
party of the second part in (here describe the amount and terms of the debt, 
or note, or bond). 

Now this indenture witnesseth, That the said party of the first 
part, for the better securing the debt (or note, or bond) above described, 
according to the true intent and meaning thereof, and also for and in con- 
sideration of the sum of one dollar to him in hand paid by the said party 
of the second part, at or before the ensealing and delivery of these pres- 
ents, the receipt whereof is hereby acknowledged, has granted, bargained, 



A CITIZEN OF THE UNITED STATES. 337 

sold, aliened, remised, released, conveyed, and confirmed, and by these 
presents does grant, bargain, sell, alien, remise, release, convey, and con- 
firm, unto the said party of the second part, and to his heirs and assigns, 
for ever, all {here describe the premises, as directed in Form 19). 

Together with all and singular the tenements, hereditaments, and 
appurtenances thereunto belonging, or in any wise appertaining, and the 
reversion and reversions, remainder and remainders, rents, issues, and 
profits thereof. And also all the estate, right, title, interest, property, 
possession, claim, and demand whatsoever, as well in law as in equity, of 
the said party of the first part, of, in and to the same, and every part 
and parcel thereof with the appurtenances: To have and to hold the above 
granted, bargained, and described premises, with the appurtenances, unto 
the said party of the second part, and his heirs and assigns, to his and their 
own proper use, benefit, and behoof for ever. 

Provided always, And these presents are upon this express condition, 
that if the said party of the first part, or his heirs, executors, or adminis- 
trators, shall well and truly pay to the said party of the second part, or his 
heirs, executors, administrators, or assigns, the above-described debt {or 
note, or bond), according to the terms and tenor thereof, then this deed (and 
also said debt, or note, or bond) shall be wholly discharged and void; and 
otherwise shall remain in full force and effect. And if default shall be 
made in the payment of the said sum of money above mentioned, or the 
interest that may grow due thereon, or of any part thereof, that then and 
from thenceforth it shall be lawful for the said party of the second part, or his 
executors, administrators, and assigns, to enter into and upon all and singu- 
lar the premises hereby granted, or intended so to be, and to sell and dis- 
pose of the same, and all benefit and equity of redemption of the said party 
of the first part, or his heirs, executors, administrators, or assigns, therein, 
at public auction, according to the act in such case made and provided. 
And as the attorney of the said party of the first part, for that purpose by 
these presents duly authorized, constituted, and appointed, to make and 
deliver to the purchaser or purchasers thereof, a good and sufficient deed 
or deeds of conveyance in the law for the same, in fee-simple, and out of 
the money arising from such sale to retain the principal and interest which 
shall then be due on the said debt ( or note, or bond), together with the 
costs and charges of advertisement and sale of the said premises, rendering 
the overplus of the purchase-money (if any there shall be) , unto the said 
party of the first part, or his heirs, executors, administrators, or assigns; 
which sale, so to be made, shall for ever be a perpetual bar, both in law 
and equity, against the said party of the first part, or his heirs and assigns, 
and all other persons claiming or to claim the premises or any part thereof, 
by, from, or under him, them, or either of them. 

In witness whereof, The parties to these presents have hereunto 
set their hands and seals, the day and year first above written. 

(Signature of mortgagor.) (Seah) 
(Signature of mortgagee.) (Seal.) 

Sealed and delivered in the presence of 



22 



338 THE PROPERTY RIGHTS OF 

State of ^ 

County of ) 

On the day of in the year one thousand eight 

hundred and before me personally came {names of both parties) , 

who are known to me to be the individuals described in, and who exe- 
cuted, the foregoing instrument, and acknowledged that they executed the 
same. 

(Signature.) 



(55.) 

DEED-POLL OF MORTGAGE, WITH POWER TO SELL AND INSURANCE 
CLAUSE, AND RELEASE OF DOWER AND HOMESTEAD. 

Know all men by these presents, That I (name, residence, and 
occupation of mortgagor) , in consideration of to me paid by 

(name, residence, and occupation of mortgagee), the receipt whereof is 
hereby acknowledged, do hereby give, grant, bargain, sell, and convey 
unto the said (name of mortgagee) all that lot or parcel of land, with all 
the buildings thereon standing, situated in the town (or city) of 
county of State of and bounded and described as 

follows; that is to say (here describe the premises, as directed in Form 19). 

To have and to hold the afore-granted premises, with the privileges, 
easements, and appurtenances thereto belonging, to the said grantee, and to 
his heirs and assigns, to their use for ever. 

And I, the said grantor, for myself and my heirs, executors, and admin- 
istrators, do covenant with the said grantee, and his heirs and assigns, that 
I am lawfully seised in fee of the afore-granted premises ; that they are 
free from all incumbrances (if any incumbrance exists, say " except as fol- 
lows," and describe the incumbrance) ; that I have good right to sell and con- 
vey the same to the said grantee, and his heirs and assigns as aforesaid; 
and that I will, and my heirs, executors, and administrators shall, warrant 
and defend the same to the said grantee, and his heirs and assigns, for ever, 
against the lawful claims of all persons. 

Provided, nevertheless, That if the said grantor, or his heirs, exec- 
utors, or administrators, shall pay unto the said grantee, or his executors, 
administrators, or assigns, the sum of dollars y^, 

in days (or months) from the day of the date hereof, with 

interest on said sum at the rate of per centum per annum, payable 

(semi-annually), and until such payment keep the buildings standing on the 
land aforesaid insured against fire, in a sum not less than dol- 

lars, for the benefit of said mortgagee, and payable to him in case of loss, 
at some insurance office approved by said mortgagee; or, in any default 
thereof, shall on demand pay to said mortgagee all such sums of money 
as the said mortgagee shall reasonably pay for such insurance, with inter- 
est, and also pay all taxes levied or assessed upon the said premises, then 
this deed, as also (a pertain bond or) a certain promissory note, bearing 
even date with these presents, signed by the said mortgagor, whereby for 



A CITIZEN OF THE UNITED STATES. 339 

value received he promises to pay the said mortgagee or his order the said 
sum and interest, at the time aforesaid, shall both be absolutely void to all 
intents and purposes. 

But if default shall be made in the payment of the money above-men- 
tioned, or the interest that may grow due thereon, or of any part thereof, 
then it shall be lawful for the said grantee, or his executors, administra- 
tors, or assigns, to sell and dispose of all and singular the premises hereby 
granted or intended to be granted, and all benefit and equity of redemption 
of the said (name of the mortgagor), the grantor, his heirs, executors, 
administrators, or assigns therein, at public auction; such sale to be on or 
near the premises hereby granted ; first giving notice of the time and place 
of sale, by publishing the same once each week, in three successive weeks, 
in (name of the newspaper), a newspaper printed in the county of 
aforesaid; and in his or their own names, or as the attorney of the said 
(name of mortgagor), the grantor, for that purpose by these presents duly 
authorized, constituted, and appointed, to make and deliver to the pur- 
chaser or purchasers thereof, a good and sufficient deed or deeds of con- 
veyance for the same in fee-simple; and out of the money arising from 
such sale, to retain the said sum of dollars, or the part thereof 

remaining unpaid, and also the interest then due on the same, together 
with the costs and charges of advertising and selling the same premises; 
rendering the surplus of the purchase-money, if any there be, over and 
above said sum and interest as aforesaid, together with a true and particu- 
lar account of said sale and charges, to the said (name of the mortgagor), 
the grantor, his heirs, executors, administrators, or assigns; which sale, 
so to be made, shall for ever be a perpetual bar, both in law and equity, 
against the said (name of the mortgagor) , the grantor, and his heirs 
and assigns, and all other persons claiming or to claim the premises, or any 
part thereof, by, from, or under him, them, or any of them. 

And provided, also, That until some breach of the condition of this 
deed, the grantee shall have no right to enter and take possession of the 
premises, and hold the same. 

In witness whereof, We, the said (name of mortgagor) and (name of 
his wife) , wife of the said (name of mortgagor) , in token of her release of 
all right and title of or to both dower and homestead in the granted prem- 
ises, have hereunto set our hands and seals, this day of 
in the year of our Lord eighteen hundred and 

(Signature of mortgagor.") (Seal.) 

(Signature of wife of mortgagor.) (Seal.) 

Executed and delivered in presence of 

ss. 18 

Then personally appeared the above-named and acknowl- 

edged the above instrument to be free act and deed. 

Before me, 

Justice of the Peace, 



i 



340 THE PROPERTY RIGHTS OF 



(56.) 

MORTGAGE BY INDENTURE, WITH POWER OF SALE AND INTEREST 
AND INSURANCE CLAUSE, TO SECURE A BOND. 

This indenture, Made the day of in the year 

one thousand eight hundred and between (name, residence, and 

occupation of the mortgagor), party of the first part, and (name, residence, 
and occupation of the mortgagee'), party of the second part: 

Whereas, The said party of the first part is justly indebted to the said 
party of the second part, in the sum of (amount of debt due on the bond) 
dollars lawful money of the United States, secured to be paid by his cer- 
tain bond or obligation , bearing even date with these presents, in the penal 
gum of (amount of penalty), lawful money as aforesaid, conditioned for the 
payment of the said first-mentioned sum of (amount of debt due on the bond), 
lawful money as aforesaid, to the said party of the second part, or his ex- 
ecutors, administrators, or assigns, on the day of 
which will be in the year one thousand eight hundred and and 
interest thereon, to be computed from at and after the rate of 
per cent per annum, and to be paid (here set forth the time and 
terms of the payment). 

And it is thereby expressly agreed, That should any default be 
made in the payment of the said interest, or of any part thereof, on any 
day whereon the same is made payable, as above expressed, and should the 
same remain unpaid and in arrear for the space of days, then 

and from thenceforth, that is to say, after the lapse of the said 
days, the aforesaid principal sum of (amount of the debt), with all arrear- 
age of interest thereon, shall, at the option of the said party of the second 
part, or his executors, administrators, or assigns, become and be due and 
payable immediately thereafter, although the period above limited for the 
payment thereof may not then have expired, any thing thereinbefore con- 
tained to the contrary thereof in any wise notwithstanding: as by the said 
bond or obligation, and the condition thereof, reference being thereunto 
had, may more fully appear. 

Now this indenture witnesseth, That the said party of the first 
part, for the better securing the payment of the said sum of money men- 
tioned in the condition of the said bond or obligation, with interest 
thereon, according to the true intent and meaning thereof, and also for 
and in consideration of the sum of one dollar to him in hand paid by the 
said party of the second part, at or before the ensealing and delivery of 
these presents, the receipt whereof is hereby acknowledged, has granted, 
bargained, sold, aliened, released, conveyed, and confirmed, and by these 
presents does grant, bargain, sell, alien, release, convey, and confirm, unto 
the said party of the second part, and to his heirs and assigns, for ever, all 
(here describe carefully the land or premises granted, as directed in Form 19). 

Together with all and singular the tenements, hereditaments, and 
appurtenances thereunto belonging, or in any wise appertaining, and the 
reversion and reversions, remainder and remainders, rents, issues, and 



A CITIZEN OF THE UNITED STATES. 341 

profits thereof; and also all the estate, right, title, interest, property, pos- 
session, claim, and demand whatsoever, as well in law as in equity, of the 
said party of the first part, of, in, and to the same, and every part and 
parcel thereof, with the appurtenances. To have and to hold the above 
granted, bargained, and described premises, with the appurtenances, unto 
the said party of the second part, his heirs and assigns, to his and their 
own proper use, benefit, and behoof for ever. 

Provided always, And these presents are upon this express condition, 
that if the said party of the first part, his heirs, executors, or administra- 
tors, shall well and truly pay unto the said party of the second part, his 
executors, administrators, or assigns, the said sum of money mentioned 
in the condition of the said bond or obligation, and the interest thereon, at 
the time and in the manner mentioned in the said condition, according to 
the true intent and meaning thereof, that then these presents, and the 
estate hereby granted, shall cease, determine, and be void. And the said 
(name of the mortgagor) , for himself and his heirs, executors, and adminis- 
trators, does covenant and agree to pay unto the said party of the second 
part, or his executors, administrators, or assigns, the said sum of money 
and interest as mentioned above and expressed in the condition of the said 
bond. And if default shall be made in the payment of the said sum of 
money above mentioned, or the interest that may grow due thereon, or of 
any part thereof, that then and from thenceforth it shall be lawful for the 
said party of the second part, or his executors, administrators, and assigns, 
to enter into and upon all and singular the premises hereby granted or 
intended so to be, and to sell and dispose of the same, and all benefit and 
equity of redemption of the said party of the first part, or his heirs, exec- 
utors, administrators, or assigns, therein, at public auction, according to 
law. And as the attorney of the said party of the first part, for that 
purpose by these presents duly authorized, constituted, and appointed, to 
make and deliver to the purchaser or purchasers thereof, a good and suffi- 
cient deed or deeds of conveyance in the law for the same, in fee-simple, 
and out of the money arising from such sale to retain the principal and 
interest which shall then be due on the said bond or obligation, together 
with the costs and charges of advertisement and sale of the said premises, 
rendering the overplus of the purchase-money (if any there shall be) , unto 
the said party of the first part, his heirs, executors, administrators, or 
assigns; which sale, so to be made, shall for ever be a perpetual bar, both 
in law and equity, against the said party of the first part, and his heirs 
and assigns, and all other persons claiming or to claim the premises- or any 
part thereof, by, from, or under him or them, or either of them. 

And it is expressly agreed by and between the parties to these 
presents, that the said party of the first part shall and will keep the build- 
ings erected and to be erected upon the lands above conveyed, insured 
against loss and damage by fire, by insurers approved by the said party of 
the second part, and in an amount approved by the said party of the 
second part, and assign the policy and certificates thereof to the said party 
of the second part; and in default thereof, it shall be lawful for the said 
party of the second part to effect such insurance, and the premium and 
premiums paid for effecting the same shall be a lien on the said mortgaged 



342 THE PROPERTY \ RIGHTS OF 

premises added to the amount of the said bond or obligation, and secured 
by these presents, and payable on demand with interest at the rate of 
per cent per annum. 
In witness whereof, The parties to these presents have hereunto 
interchangeably set their hands and seals, the day and year first above 
written. 

{Signature of mortgagor J) {Seal.') 
{Signature of mortgagee.) {Seal.) 

Sealed and delivered in the presence of 



>&8. 



State of 

County. 

On the day of in the year one thousand eight 

hundred and before me personally came - who are 

known by me to be the individuals described in, and who executed the 
foregoing instrument, and acknowledged that they executed 

the same as their free act and deed. 

{Signature.) 

(57.) 

MORTGAGE TO EXECUTORS, WITH POWER OF SALE 

This indenture, Made the day of in the year one 

thousand eight hundred and between {name, residence, and occupa- 

tion of the mortgagor) , party of the first part, and {name and residence of the 
mortgagee), executor of the last will and testament of {name and resi- 
dence of the testator), deceased, of the second part; whereas, the said party 
of the first part is justly indebted to the said party of the second part in 
the sum of lawful money of the United States of America, 

secured to be paid by a certain bond or obligation bearing even date with 
these presents, in the penal sum of lawful money as aforesaid, 

conditioned for the payment of the said first-mentioned sum {state the terms 
of the payment ; and if the bond ivas made to the testator, state that), as by 
the said bond or obligation and the condition thereof, reference being 
thereunto had, may more fully appear. 

Now this indenture witnesseth, That the said party of the first 
part, for the better securing the payment of the said sum of money men- 
tioned in the condition of the said bond or obligation, with interest 
thereon, according to the true intent and meaning thereof, and also for 
and in consideration of the sum of one dollar to him in hand paid by the 
said party of the second part, at or before the ensealing and delivery of 
these presents, the receipt whereof is hereby acknowledged, has granted, 
bargained, sold, aliened, released, conveyed, and confirmed, and by these 
presents does grant, bargain, sell, alien, release, convey, and confirm, unto 
the said party of the second part, and his successors and assigns, for ever, all 
{here describe carefully the land or premises granted, as directed in Form 19). 



A CITIZEN OF THE UNITED STATES. 343 

Together with all and singular the tenements, hereditaments, and 
appurtenances thereunto belonging or in any wise appertaining, and the 
reversion and reversions, remainder and remainders, rents, issues, and 
profits thereof; and also all the estate, right, title, interest, property, pos- 
session, claim, and demand whatsoever, as well in law as in equity, of the 
said party of the first part, of, in, and to the same, and every part and 
parcel thereof, with the appurtenances. To have and to hold the above 
granted, bargained, and described premises, with the appurtenances, unto 
the said party of the second part, his successors and assigns, to their only 
proper use, benefit, and behoof for ever. Provided always, and these 
presents are upon this express condition, that if the said party of the first 
part, or his heirs, executors, or administrators, shall well and truly pay 
unto the said party of the second part, or his successors or assigns, the 
said sum of money mentioned in the condition of the said bond or obliga- 
tion, and the interest thereon, at the time, and in the manner mentioned 
in the said condition, according to the true intent and meaning thereof, 
that then these presents, and the estate hereby granted, shall cease, deter- 
mine, and be null and void. And the said party of the first part, for 
himself and his heirs, executors, and administrators, does covenant and 
agree to pay unto the said party of the second part, his successors or 
assigns, the said sum of money and interest, as mentioned above, and 
expressed in the condition of the said bond. And if default shall be made 
in the payment of the said sum of money above mentioned, or the interest 
that may grow due thereon, or of any part thereof, that then and from 
thenceforth it shall be lawful for the said party of the second part, his 
successors and assigns, to enter into and upon all and singular the premises 
hereby granted, or intended so to be, and to sell and dispose of the same, 
and all benefit and equity of redemption of the said party of the first part, 
or his heirs, executors, administrators, or assigns therein, at public auction, 
according to law. And as the attorney or attorneys of the said party of 
the first part, for that purpose by these presents duly authorized, consti- 
tuted, and appointed, to make and deliver to the purchaser or purchasers 
thereof a good and sufficient deed or deeds of conveyance in the law for 
the same, in fee-simple, and out of the money arising from such sale to 
retain the principal and interest which shall then be due on the said bond 
or obligation, together with the costs and charges of advertisement and 
sale of the said premises, rendering the overplus of the purchase-money 
(if any there shall be) unto the said party of the first part, his heirs, 
executors, administrators, or assigns; which sale, so to be made, shall for 
ever be a perpetual bar, both in law and equity, against the said party of 
the first part, his heirs and assigns, and all other persons claiming or to 
claim the premises, or any part thereof, by, from, or under him, them, or 
any of them. 

In witness whereof, The parties to these presents have hereunto set 
their hands and seals, the day and year first above written. 

(Signature.) (Seal.) 
(Signature.) (Seal.) 

Signed, sealed, and delivered in the presence of 



344 THE PROPERTY RIGHTS OF 



State of 



> ss. 

'• ) 



County. 

On the day of in the year one thousand eight 

hundred and before me personally caine who are 

known by me to be the individuals described in, and who executed the 
foregoing instrument, and acknowledged that they executed 

the same as their free act and deed. 

(Signature.) 

(58.) 

MORTGAGE OF A LEASE. 

This indenture, Made the day of in the year one 

thousand eight hundred and between (name, residence, and occu- 

pation of mortgagor), party of the first part, and (name, residence, and 
occupation of mortgagee) , party of the second part; Whereas, (name, resi- 
dence, and occupation of the lessor of the lease to be mortgaged), did, by a 
certain indenture of lease, bearing date the day of 

in the year one thousand eight hundred and demise, lease, and 

to farm let, unto the said party of the first part, and to his executors, 
administrators, and assigns, all and singular the premises hereinafter men* 
tioned and described, together with their appurtenances. To have and to 
hold the same unto the said party of the first part, and to his executors, 
administrators, and assigns, for and during and until the full end and term 
of years, from the day of and fully 

to be complete and ended, yielding and paying therefor unto the said (name 
of the lessor), and to his heirs, executors, administrators, or assigns, the 
yearly rent or sum of (state the rent, and the times or terms of the payments). 

And whereas, The said party of the first part is justly indebted to 
the said party of the second part in the sum of dollars, lawful 

money of the United States of America, secured to be paid by his certain 
bond or obligation, bearing even date with these presents, in the penal sum 
of dollars, lawful money as aforesaid, conditioned for the pay- 

ment of the said first-mentioned sum of (here give the amount of the debt to 
be paid), as by the said bond or obligation, and the condition thereof, 
reference being thereunto had, may more fully appear. 

Now this indenture witnesseth, That the said party of the first 
part, for the better securing the payment of the said sum of money men- 
tioned in the condition of the said bond or obligation, with interest thereon, 
according to the true intent and meaning thereof, and also for and in con- 
sideration of the sum of one dollar, to him in hand paid by the said party 
of the second part, at or before the ensealing and delivery of these pres- 
ents, the receipt whereof is hereby acknowledged, has granted, bargained, 
sold, assigned, transferred, and set over, and by these presents does grant, 
bargain, sell, assign, transfer, and set over, unto the said party of the second 
part, the estate or premises leased and transferred by said indenture of 
lease, that is to say (here describe the premises in the same manner i» which 



A CITIZEN OF THE UNITED STATES. 345 

they are described in the lease); together with all and singular the edifices, 
buildings, rights, members, privileges, and appurtenances thereunto belong- 
ing, or in any wise appertaining; and also all the estate, right, title, inter- 
est, term of years yet to come and unexpired, property, possession, claim, 
and demand whatsoever, as well in law as in equity, of the said party of 
the first part, of, in, and to the said demised premises, and every part and 
parcel thereof, with the appurtenances; and also the said indenture of lease, 
and every clause, article, and condition therein expressed and contained. 

To have and to hold the said indenture of lease, and other hereby 
granted premises, unto the said party of the second part, his executors, 
administrators, and assigns, to his and their only proper use, benefit, and 
behoof, for and during all the rest, residue, and remainder, of the said 
term of years yet to come and unexpired; subject, nevertheless, to the 
rents, covenants, conditions, and provisions in the said indenture of lease 
mentioned. Provided always, and these presents are upon this express 
condition, that if the said party of the first part shall well and truly pay 
unto the said party of the second part the said sum of money mentioned 
in the condition of the said bond or obligation, and the interest thereon, 
at the time and in the manner mentioned in the said condition, according 
to the true intent and meaning thereof, that then and from thenceforth 
these presents, and the estate hereby granted, shall cease, determine, and 
be utterly null and void, any thing hereinbefore contained to the contrary 
in any wise notwithstanding. And the said party of the first part does 
hereby covenant, grant, promise, and agree to and with the said party of the 
second part, that he shall well and truly pay unto the said party of the 
second part the said sum of money mentioned in the condition of the said 
bond or obligation, and the interest thereon, according to the condition of 
the said bond or obligation. And that the said premises hereby conveyed 
now are free and clear of all incumbrances whatsoever, and that the said 
party of the first part has good right and lawful authority to convey the 
same in manner and form hereby conveyed. And if default shall be made 
in the payment of the said sum of money above mentioned, or in the in- 
terest which shall accrue thereon, or of any part of either, that then and 
from thenceforth it shall be lawful for the said party of the second part, 
and his assigns, to sell, transfer, and set over all the rest, residue, and 
remainder of the said term of years then yet to come, and all other the 
right, title, and interest of the said party of the first part, of, in, and to 
the same, at public auction, according to the act in such case made and 
provided: and as the attorney of the said party of the first part, for that 
purpose by these presents duly authorized, constituted, and appointed, to 
make, seal, execute, and deliver to the purchaser or purchasers thereof, a 
good and sufficient assignment, transfer, or other conveyance in the law, 
for the same premises, with the appurtenances; and out of the money 
arising from such sale to retain the principal and interest which shall then 
be due on the said bond or obligation, together with the costs and charges 
of advertisement and sale of the same premises, rendering the overplus 
of the purchase-money (if any there shall be) unto the said party of the 
first part, or his assigns; which sale, so to be made, shall be a perpetual 
bar, both in law and equity, against the said party of the first part, and 



346 THE PROPERTY RIGHTS OF 

against all persons claiming or to claim the premises, or any part thereof, 
by, from, or under him or them, or any of them. 

In witness whereof, The said party of the first part to these pres- 
ents has hereunto set his hand and seal, the day and year first above 
written. 

(Signature.) (Seal.) 

Signed, sealed, and delivered in the presence of 

State of > 

[•ss. 
County of ) 

On the day of in the year one thousand eight 

hundred and before me personally came who is 

known to me to be the individual described in, and who executed, the 
foregoing instrument, and acknowledged that he executed the 

same as his free act and deed. 

(Signature.) 

(59.) 

MORTGAGEE'S DEED, UNDER A POWER OF SALE. 

This indenture, Made this day of in the year 

of our Lord one thousand eight hundred and between (name 

and occupation of the mortgagee) , of the county of and State of 

party of the first part, and (name and occupation of the grantee) , 

of the county of and State of of the second part. 

Witnesseth, That whereas (name and occupation of the owner and mort- 
gagor who gave to the mortgagee the power now exercised), of the county of 
and State of did, by a certain deed, dated the 

day A.r>. 18 which deed is recorded in the 

recorder's office of the county of in the State of on 

the day of a.d. 18 in book of 

at page grant, sell, and convey to the said party of the first part 

all the premises hereinafter described, to secure the payment of 

a certain debt (or note, or bond) in said deed particularly mentioned, and 
upon certain terms in said deed particularly declared; and whereas default 
hath been made in the payment of said debt (note or bond) , the said prem- 
ises were, by said party of the first part, duly advertised for public sale at 
the door of the court-house in the county of 

and State of on the day of a.d. 18 in 

the manner prescribed by said deed, and were, upon the day and year and 
at the place last mentioned aforesaid, in pursuance of said notice, sold at 
public sale, and at said sale the said party of the second part was the 
highest and best bidder therefor, and bid for the tract first hereinafter 
named, the sum of dollars. 

Now, therefore, These presents witness, that the said party of the 
first part, in pursuance of the power and authority in him vested in and 
by the said deed, and in consideration of the sum of dollars. 



A CITIZEN OF THE UNITED STATES. 347 

to the said party of the first part paid by the said party of the second part, 
the receipt whereof is hereby acknowledged, hath released and quit- 
claimed, and doth hereby convey, remise, release, and quitclaim, to the 
said party of the second part, his heirs and assigns, for ever, all the right, 
title, and interest, as well in law as in equity, which the said party of the 
first part hath acquired by virtue of the deed above mentioned, of, in, and 
to all that certain tract , piece , or parcel of land, situated in the 
county of and State of and described 

as follows, to wit (Jiere describe the premises, as directed in Form 19). 

Together with all and singular the tenements, hereditaments, and 
appurtenances thereunto belonging, or in any wise appertaining, and the 
reversions, remainders, rents, issues, and profits thereof; and also all the 
estate, right, title, interest, claim, and demand whatsoever, as well in law 
as in equity, of the said party of the first part, of, in, and to the same, and 
any and every part thereof, with the appurtenances, which the said party 
of the first part acquired by virtue of said deed. 

To have and to hold the aforesaid right, title, and interest of the 
said party of the first part, unto the said party of the second part, his 
heirs and assigns, for ever, as full and absolutely as the said party of the 
first part can, by virtue of the power and authority in him by said deed 
vested, convey the same. 

In witness whereof, The party of the first part hath hereto set his 
hand and seal, the day and year first above written. 

(Signature of seller.} (Seal.) 

Signed, sealed, and delivered in presence of 



State of 



>ss. 
County. ) 



On the day of eighteen hundred and sixty- 

before me of the county of in the State 

of appeared who is personally known to me to be 

the real person whose name is subscribed to the foregoing instrument of 
writing, as having executed the same, and then acknowledged the execu- 
tion thereof as his free act and deed, for the uses and purposes herein 
mentioned. 

(Signature.) 

(60.) 

ASSIGNMENT OF MORTGAGE. SHORT FORM. 

Know all men by these presents, That I (name, residence, and 
occupation of the assignor), the mortgagee named in a certain mortgage 
deed, given by (name, residence, and occupation of the mortgagor) , to said 
(name of assignor) , to secure the payment of dollars TT5 -, dated 

the day of in the year of our Lord eighteen hundred 

and recorded in the registry of deeds for the county 

of lib. fol. in consideration of the sum of 

dollars T51 j- to me paid by (name, residence, and occupation oj 



348 THE PROPERTY RIGHTS OF 

buyer and assignee) , the receipt whereof is hereby acknowledged, do hereby 
sell, assign, transfer, set over, and convey unto said {name of assignee), and 
his heirs and assigns, said mortgage deed, the real estate thereby conveyed, 
and the promissory note debt, and claim thereby secured, and the cove- 
nants therein contained. 

To have and to hold the same to him the said (name of assignee), 
and his heirs and assigns, to his and their use and behoof, for ever; sub- 
ject, nevertheless, to the conditions herein contained, and to redemption 
according to law. 

In witness whereof, I, the said have hereunto set my 

hand and seal, this day of in the year of our Lord 

eighteen hundred and 

(Signature.) (Seal.) 

Executed and delivered in presence of 

ss. . a.d. 18 

Then personally appeared the above-named and acknowl- 

edged the above instrument to be his free act and deed. Before me, 

(Signature.) 

(61.) 

ASSIGNMENT OF MORTGAGE, WITH POWER OF ATTORNEY. 

Know all men by these presents, That I, (name, residence, and 
occupation of assignor) , party of the first part, in consideration of the sum 
of lawful money of the United States, to me in hand paid by 

(name, residence, and occupation of assignee), of the second part, at or before 
the ensealing and delivery of these presents, the receipt whereof is hereby 
acknowledged, have granted, bargained, sold, assigned, transferred, and 
set over, and by these presents do grant, bargain, sell, assign, transfer, and 
set over, unto the said party of the second part, his executors, adminis- 
trators, and assigns, a certain indenture of mortgage, bearing date the 
day of one thousand eight hundred and sixty- 

made by (here state the name of the mortgagor, and briefly describe 
the mortgage deed, and state the volume and page where it is registered), to 
which reference may be made, together with all the right, title, interest, 
and estate of said party of the first part, in and to the premises described 
and conveyed in and by said indenture of mortgage. 

Together with the bond (or note) therein described, and the money 
due and to grow due thereon, with the interest accruing or accrued, to 
have and to hold the same, unto the said party of the second part, his 
executors, administrators, and assigns, for his and their use, subject only 
to the proviso in the said indenture of mortgage mentioned: and I do 
hereby make, constitute, and appoint the said party of the second part, 
my true and lawful attorney, irrevocably in my name or otherwise, but at 
his own proper costs and charges, to have, use, and take all lawful ways 
and means for the recovery of the said money and interest; and in case of 
payment, to discharge the same as fully as I might or could do if these 
presents were not made. 



! 



A CITIZEN OF THE UNITED STATES. 349 

In witness whereof, I have hereunto set my hand and seal, the 
day of one thousand eight hundred and sixty- 

(Signature.) {Seal.) 

Signed, sealed, and delivered in the presence of 



>-ss. 



State op 

County. 
On this day of eighteen hundred and sixty- 



personally appeared before me known to me to be the person 

who signed and sealed the foregoing assignment of mortgage, and acknowl- 
edged the execution of the same for the uses and purposes therein set 
forth. 

Given under my hand and seal, at in said county aforesaid. 

{Signature.) {Seal.) 



(62.) 

ASSIGNMENT OF MORTGAGE BY A CORPORATION. 

Know all men by these presents, That the (legal name of the 
corporation assigning), existing as a corporate body, in and under the laws 
of the State of of the first part, for and in consideration of the 

sum of lawful money of the United States, to the said corpora- 

tion paid by (name, residence, and occupation of assignee), of the second 
part, at or before the ensealing and delivery of these presents, the receipt 
whereof is hereby acknowledged, have granted, bargained, sold, assigned, 
transferred, and set over, and by these presents do grant, bargain, sell, 
assign, transfer, and set over, unto the said party of the second part, a 
certain indenture of mortgage, bearing date the day of 

one thousand eight hundred and made by (here state the name 

of the mortgagor, and briefly describe the mortgage deed), the same being duly 
registered in the office of the register of deeds for the county of 
and State of to which said indenture of mortgage reference 

may be had. 

Together with the bond or obligation therein described, and the 
moneys due, and to grow due thereon, with the interest: to have and to 
hold the same unto the said party of the second part, his heirs and assigns, 
for his and their own use, subject only to the proviso in the said indenture 
of mortgage mentioned. And the said parties of the first part do hereby 
make, constitute, and appoint the said party of the second part their true 
and lawful attorney, irrevocable, in the name of the said parties of the first 
part, or otherwise, but at the proper costs and charges of the said party of 
the second part, to have, use, and take all lawful ways and means for the 
recovery of the said money and interest, and in case of payment to discharge 
the same as fully as the said parties of the first part might or could do if 
these presents were not made 



350 THE PROPERTY RIGHTS OF 

In witness whereof, The said parties of the first part have caused 
their common seal to be affixed to these presents, and the same to be signed 
by their attorney and president (or other officer), the day of 

in the year one thousand eight hundred and 

{Signature.) (Seal of the corporation.) 

Signed, sealed, and delivered in presence of 



State of 

County. 



1 



On the day of in the year one thousand eight 

hundred and before me came with whom I am 

personally acquainted, and known to me to be the attorney and 
of the within-named corporation, who, being by me duly examined, says, 
that the seal which is affixed to the within assignment i§ the corporate seal 
of the said corporation, and was so affixed by their authority, and acknowl- 
edged that he executed the same as their act and deed. 

(Signature.) 

(63.) 

DISCHARGE OF MORTGAGE. SHORT FORM. 

The debt secured by the mortgage, dated and recorded 

with deeds, lib. fol. has been paid to me by 

(name of mortgagor) , and in consideration thereof I do discharge the mort- 
gage and release the mortgaged premises to said (name of mortgagor) and 
his heirs. 

Witness my hand and seal a.d. 18 

(Signature.) (Seal.) 

Executed and delivered in presence of 

ss. a.d. 186 Then said acknowledged 

the foregoing instrument to be free act and deed. 

Before me, 

(Signature.) 

(64.) 

RELEASE AND QUITCLAIM OF MORTGAGE, AS USED IN THE 
WESTERN STATES. 

Know all men by these presents, That I (name of mortgagee), of 
the county of and State of for and in consideration 

of one dollar, to me in hand paid, and for other good and valuable con- 
siderations, the receipt whereof is hereby confessed, do hereby grant, 
bargain, remise, convey, release, and quitclaim unto (name of assignee or 
releasee), of the county of and State of all the right, 

title, interest, claim, or demand whatsoever I may have acquired in. 



A CJTfZKN OF THE UNITED STATES. . 351 

through, or by a certain indenture or mortgage deed, bearing date the 
day of a.d. 186 and recorded in the recorder's 

office of county in book of page 

to the premises therein described, and which said deed was made 
to secure a certain promissory note (or bond) bearing even date with said 
deed, for the sum of dollars and cents. 

Witness my hand and seal, this day of 

v.d. 186 

(Signature.) (Seal.) 



State of 

County. 



,1 



I, in and for said county in the State aforesaid, do hereby 

certify that who is personally known to me as the same person 

whose name is subscribed to the foregoing deed, appeared before me this 
day in person, and acknowledged that he signed, sealed, and delivered the 
said instrument of writing as his free and voluntary act, for the uses and 
purposes therein set forth. 

Given under my hand and seal, this day of a.d. 186 

(Signature.) (Seal.) 

(65.) 

DISCHARGE OF MORTGAGE, AS USED IN THE MIDDLE STATES- 

State op ") 

>-ss. 
County of ) 

I (name, residence, and occupation of mortgagee), do hereby certify that 
a certain indenture (or deed) of mortgage, bearing date the day 

of one thousand eight hundred and made and executed 

by (here state the name of the mortgagor, and describe the deed briefly), and 
recorded in the office of county of in lib. 

of mortgages, page on the day of in the 

y«ar one thousand eight hundred and o'clock, in the 

is paid. And I do hereby consent that the same be discharged of record. 
Dated the day of 18 

(Signature.) (Seal). 
In presence of 

State of "> 

[-88. 

County of ) 

On the day of in the year one thousand eight 

hundred and before me personally came who is known 

to me to be the individual described in, and who executed, the foregoing 
instrument, and acknowledged that he executed the same as his free act 
and deed. 

(Signature.) 



352 THE PROPERTY RIGHTS OF 

(66.) 

DISCHARGE AND SATISFACTION OF MORTGAGE BY A CORPORATION. 

We {the legal name of the corporation), a corporate body existing within 
and under the laws of the State of 

Do hereby certify, That a certain mortgage, bearing date the 
day of in the year one thousand eight hundred and 

made and executed by {here state the name of the mortgagor, 
and describe the mortgage briefly), and recorded in the office of the register 
in and for the county of in lib. of mort- 

gages, page on the day of is paid. 

In witness whereof, The said corporation has caused its corporate 
seal to be hereunto affixed, this day of in the year 

one thousand eight hundred and 

{Signature of attorney.) (Seal of corporation.) 
Witnessed by 

State of > 

J-ss. 
County of ) 

On the day of in the year one thousand eight 

hundred and before me personally came to me known, 

who, being by me duly sworn, did depose and say, that he resided in the 
city {or town) of that he is the attorney and president (or other 

officer) of the said corporation ; that he knew the corporate seal of the said 
corporation, and that the seal affixed to the foregoing instrument was such 
corporate seal; that it was affixed by him by order of the said corporation, 
and that he signed his name thereto by the like order. 

(Signature.) 

(67.) 

RELEASE OF A PART- OF THE MORTGAGED PREMISES. 

This indenture, Made the day of in the year 

of our Lord one thousand eight hundred and between (name, 

residence, and occupation of the mortgagee and releasor) , party of the first 
part, and (name ^residence, and occupation of the mortgagor to whom the 
release is given), party of the second part: 

Whereas, The said party of the second part, by indenture of mort- 
gage, bearing date the day of ~] one thousand eight 
hundred and ? for the consideration therein mentioned, and to 
secure the payment of the money therein specified, did convey certain lands 
and tenements, of which the lands hereinafter described are part, unto the 
said party of the first part, 

And whereas, The said party of the first part, at the request of the 
said party of the second part, has agreed to give up and surrender the 
lands hereinafter described unto the said party of the second part, and to 



A CITIZEN OF THE UNITED STATES. 353 

hold and retain the residue of the mortgaged lands as security for the 
money remaining due on the said mortgage : Now this indenture witness- 
eth, that the said party of the first part, in pursuance of the said agree- 
ment, and in consideration of to him duly paid at the time of 
the ensealing and delivery of these presents, the receipt whereof is hereby 
acknowledged, has granted, released, quitclaimed, and set over, and by 
these presents does grant, release, quitclaim, and set over, unto the said 
party of the second part, all that part of the said mortgaged land (here 
describe carefully and accurately all that part of the mortgaged land which it 
is intended to release, distinguishing it from that which is retained), f 

Together with the hereditaments and appurtenances thereto belong- 
ing, and all the right, title, and interest of the said party of the first 
part, of, in, and to the same, to the intent that the lands hereby conveyed 
may be discharged from the said mortgage, and that the rest of the lands 
in the said mortgage specified may remain to the said party of the first 
part as heretofore. To have and to hold the lands and premises hereby 
released and conveyed to the said party of the second part, and his heirs 
and assigns, to his and their only proper use, benefit, and behoof, for ever, 
free, clear, and discharged of and from all lien and claim under and by 
virtue of the indenture of mortgage aforesaid. 

In witness whereof, The said party of the first part has hereunto 
set his hand and seal, on the t ( day of j ■"*— in the year 

(Signature.) (Seal.) 
Executed and delivered in presence of 

State of 



County of 



>-ss. 



On the day of in the year one thousand eight 

hundred and before me personally came who is 

known to me to be the individual described in, and who executed, the fore- 
going instrument, and acknowledged that he executed the same as his free 
act and deed. 

(Signature.) 

(68.) 
DEED EXTENDING A MORTGAGE. 

This indenture, Made this day of a.d. 18 

by and between (name, residence, and occupation of the mortgagee), the 
owner and holder of a certain promissory note (or bond) for the principal 
sum of dollars, given by (name of mortgagor), and secured by 

a mortgage of certain real estate in in the county of 

and State of dated day a.d. 18 and 

recorded in registry of deeds, for the county of 

lib. fol. party of the first part, and the said (name 

of mortgagor) , party of the second part, 

23 



354 THE PROPERTY RIGHTS OF 

Witnesseth, That the said parties, for themselves and their repre- 
sentatives, hereby mutually agree that the time for the payment of the 
principal of said note and mortgage debt shall be and the same is hereby 
extended for the term of years from the day of 

a.d. 18 and that the same is to bear interest from said date, 
at tne rate of per cent per annum, payable on the 

day of and the day of in every year, until 

said principal sum shall be fully paid. 

And the said party of the second part hereby covenants and agrees 
that he will not require the holders of said note and mortgage to receive 
payment of said mortgage debt during said extended term; that he will 
punctually pay the interest now due, and to grow due thereon, at the 
times and at the rate aforesaid ; that he will keep the mortgaged premises 
in good repair, and insured against fire, and the taxes thereon duly paid, 
according to the provisions of said mortgage, and that at the expiration 
of said extended term he will pay the said mortgage debt, with all 
interest then due thereon. 

It is expressly understood and agreed that nothing herein contained 
shall be construed to impair the security of said party of the first part, 
or his executors, administrators, or assigns, under said mortgage, or to 
affect or impair the lien on the real estate therein described, which he has 
by virtue of said mortgage, nor affect or impair any rights or powers 
which he may have under the said note and mortgage, for the recovery of 
the mortgage debt, with interest, in case of non-fulfilment of this agree- 
ment, or of any of the provisions hereof, by said party of the second 
part. 

In witness whereof, The said parties have hereunto set their hands 
and seals, the day and year first above written. 

: (Signature of mortgagee.) (Seal.) 

(Signature of mortgagor.) (Seal.) 

Signed, sealed, and delivered in presence of 

Commonwealth (or State) op ss. 18 Per- 

sonally appeared the above-named and acknowledged the 

above instrument to be his (or their) free act and deed. 
Before me, 

(Signature.} 



A CITIZEN OF THE UNITED STATES. 355 



CHAPTER VI. 

PUECHASE AND SALE OF GOODS AND 
CHATTELS. 

SECTION I. 
WHAT CONSTITUTES A SALE. 

It is important to distinguish carefully between a sale and an 

agreement for a future sale. This distinction is sometimes over- 
looked ; and hence the phrase " an executory contract of sale," that 
is, a contract of sale which is to be executed hereafter, has come 
into use ; but it is not quite accurate to speak of this as if it were 
a sale. Every actual sale is an executed contract, although pay- 
ment or delivery may remain to be made. There may be an 
executory contract for a sale, or a bargain that a future sale shall 
be made; but such a bargain is not a present sale, nor does it 
confer upon either party the rights or the obligations which grow 
out of the contract of sale. 

A sale of goods is the exchange thereof for money. More pre- 
cisely, it is the transfer of the property in goods from a seller to a 
buyer, for a price paid, or to be paid, in money. It differs from an 
exchange, in law ; for that is the transfer of chattels for other chat- 
tels ; while a sale is the transfer of chattels for money, which is the 
representative of all value. 

Here we must pause to speak of the legal meaning of the word 
" property." It is seldom or never used in the law, as it is in com- 
mon conversation, to mean the things themselves which are bought, 
or sold, or owned. Because in law it means the ownership of the 
things, and not the things themselves. 

If a bargain transfers the property in (which means the own- 
ership of) the thing to another person for a price, it is a sale ; and 
if it does not transfer the property, it is not a sale ; and, on the 
other hand, if it be not a sale, it does not transfer the property. As 
soon as a thing is sold, the buyer owns it, wherever it may be. 
And to constitute a sale at common law, all that is necessary is the 
agreement of the buyer and the seller that the property in (or own- 
ership of) the subject-matter shall then pass from the seller to the 
buyer for a fixed price. 



L 



356 THE PROPERTY RIGHTS OF 

The sale is made when the agreement is made. The completion 

of the sale does not depend upon the delivery of the goods by the 
seller, nor upon the payment of the price by the buyer. By the 
mutual assent of the parties to the terms of the sale, the buyer 
acquires at once the property and all the rights and liabilities of 
property ; so that, in case of any loss or depreciation of the articles 
purchased, the buyer will be the loser ; and he will be the gainer 
by any increase in their value. 

It is, however, a presumption of the law, that the sale is to be 
immediately followed by payment and delivery, unless otherwise 
agreed upon by the parties. If, therefore, nothing appears but a 
proposal and an acceptance, and the vendee departs without paying 
or tendering the price, the vendor may elect to consider it no sale, 
and may, therefore, if the buyer comes at a later period and offers 
the price and demands the goods, refuse to let him have them. 
But a credit may be agreed on expressly, and the seller will bo 
bound by it ; and so he will be if the credit is inferred or implied 
from usage or from the circumstances of the case. And if there 
be a delivery and acceptance of the goods, or a receipt by the 
seller, of earnest, or of part payment, the legal inference is that 
both parties agree to hold themselves mutually bound by the bar- 
gain. Then the buyer has either the credit agreed upon, or such 
credit as from custom or the nature or circumstances of the case is 
reasonable. But neither delivery nor earnest nor part payment is 
essential to the completion of a contract of sale. They only pre- 
vent the seller from rescinding the contract of sale without the 
consent of the purchaser. Their effect upon sales under the pro- 
visions of the Statute of Frauds will be considered in the chapter 
on that subject. 

No one can be made to buy of another without his own assent. 
Thus, if A sends an order to B for goods, and C sends the goods, 
he cannot sue for the price if A repudiates the sale, although C 
had bought B's business. 

The seller (if no delivery with credit for the price is agreed 
on) has a right to retain possession of the property sold until the 
price is paid. This right is called a lien, which means the right of 
retaining possession of property until some charge upon it, or some 
claim on account of it, is satisfied. It rests, therefore, on possession. 
Hence the seller (and every other person who has a lien) loses it 
by voluntarily parting with the possession or by a delivery of the 
goods. And it is a delivery for this purpose if he delivers a part, 
without any purpose of severing that part from the remainder ; or 
if he make a symbolical delivery which vests this right and power 
of possession in the buyer, as by the delivery of the key of a ware- 
house in which they are locked up. 



A CITIZEN OF THE UNITED STATES. 857 

If the seller delivers the goods to the buyer, as he thereby 

loses his lien, he cannot afterwards, by virtue of this lien, retake 
the goods and hold them. But if the delivery was made with an 
express agreement that non-payment of the price should revest the 
property in the seller, this agreement may be valid, and the seller 
can reclaim the goods from the buyer if the price be not paid. 

If the buyer neglect or refuse to take the goods and pay the 
price within a reasonable time, the seller may resell them on notice 
to the buyer, and look to him for the deficiency by way of damages 
for the breach of the contract. The seller, in making such resale, 
acts as agent or trustee for the buyer ; and his proceedings will be 
regulated and governed by the rules usually applicable to persons 
acting in those capacities ; and the principal one of these is, that he 
will be held to due care and diligence, and to perfect good faith. 

Certain consequences flow from the rules and principles al- 
ready stated, which should be noticed. Thus, if the party to whom 
the offer of sale is made accepts the offer, but still refuses or 
neglects to pay the price, and there are no circumstances indi- 
cating a credit, or otherwise justifying the refusal or neglect, the 
seller may, as we have said, disregard the acceptance of his offer, 
and consider the contract as never made, or as rescinded. It would, 
however, be proper and prudent on the part of the seller expressly 
to demand payment of the price before he treated the sale as null ; 
and a refusal or neglect would then give him at once a right to hold 
and treat the goods as his own. So, too, if the seller unreasonably 
neglected to deliver the goods sold, and especially if he refused to 
deliver them, the buyer thereby acquires the right to consider that 
no sale was made, or that it has been avoided (or annulled). But 
neither party is bound to exercise the right thus acquired by the 
refusal or neglect of the other, which is a right to rescind or annul 
the sale, but may consider the sale as complete ; and the seller may 
sue the buyer for non-payment, or the buyer may sue the seller 
for non-delivery. 

If the seller has merely the right of possession, as if he had 
hired the goods ; or if he has the possession only, as if he had stolen 
them, or found them, he cannot sell them and give good title to the 
buyer against the owner; and the owner may therefore recover 
them even from an honest purchaser who was wholly ignorant of 
the defect in the title of him from whom he bought them. This 
follows from the rule above stated, that only he who has in himself 
a right of property can sell a chattel, because the sale must trans- 
fer the right of property from the seller to the buyer. The only 
exception to the above rule is where money, or negotiable paper 
transferable by delivery (which is considered as money), is sold or 



L 



358 THE PROPERTY RIGHTS OF 



paid away. In either case, he who takes it in good faith, and for 
value, from a thief 01 finder, holds it by good title. If the owner 
once sold the thing, although he was deceived and induced to part 
with his property through fraud, he cannot reclaim it from one who 
in good faith buys it from the fraudulent party who purchased it 
from the owner. 

If any thing remains to be done by the seller, to or in relation 
to the goods sold, for their ascertainment, identification, or comple- 
tion, the property in the goods does not pass until that thing is 
done ; and until then there is no completed sale. Therefore, if there 
be a bargain for the sale of specific goods, but there remains some- 
thing material which the seller is to do to them, and they are casually 
burnt or stolen, the loss is the seller's, because the property (or 
ownership) had not yet passed to the buyer. • 

So, if the goods are a part of a large quantity, they remain 
the seller's until selected and separated ; and even after that, until 
recognized and accepted by the buyer, unless it is plain from words 
or circumstances that the selection and separation by the buyer are 
intended to be conclusive upon both parties. 

If repairing or measuring or counting must be done by the 
seller, before the goods are fitted for delivery or the price can be 
determined or their quantity ascertained, they remain, until this be 
done, the seller's. And where part is measured and delivered, this 
part passes to the vendee, but the portion not so treated does not. 
But if the seller delivers them and the buyer accepts them, and any 
of these acts remain to be done, these acts will not be considered as 
belonging to the contract of sale, for that will be regarded as com- 
pleted, and the ownership of the goods will have passed to the 
buyer; and these acts will be taken only to refer to the adjustment 
of the final settlement as to the price. 

Thus a purchaser offers a nursery-man a dollar apiece for two 
hundred out of a row of two thousand trees, which are all alike, and 
the offer is accepted. This is no sale, because any two hundred may 
be delivered, and therefore the property or ownership of any specific 
two hundred does not pass. But if the purchaser or seller had said, 
the first two hundred in the row, or the last, or every third tree, or 
otherwise indicated the specific trees, there would have been a sale, 
and by the sale those specific trees would have become at once the 
trees of the buyer. The seller would dig up and deliver them as 
the buyer's trees, and if they were burned up by accident an hour 
after the sale, and before digging, the buyer would lose the trees. If 
not specified, however, even if they were paid for, they remain the 
property of the nursery-man, because, instead of an actual sale, there 
is only a bargain that he will select two hundred from the lot, and 



A CITIZEN OF THE UNITED STATES. 359 

take up and deliver them. And if they are destroyed before delivery, 
this is the loss of the nursery-man. 

Moreover, it is to be noticed that a contract for a future sale, to 
take place either at a future point of time, or when a certain event 
happens, does not, when that time arrives, or on the happening of 
the event, become of itself a sale, transferring the property. The 
party to whom the sale was to be made does not then acquire the 
property, and cannot, by tendering the price, acquire a right to 
possession ; but he may tender the price, or whatever else would 
be the fulfilment of his obligation, and demand the goods, and then 
sue the owner for his breach of contract if he will not deliver the 
goods. But the property (or legal title) in the goods remains in 
the original owner. 

For the same reason that the property in the goods must pass 
by a sale, there can be no actual sale of any chattel or goods which 
have no existence at the time. It may, as we have seen, be a good 
contract for a future sale, but it is not a present sale. Thus, in con- 
tracts for the sale of articles yet to be manufactured, the subject of 
the contract not being in existence when the parties enter into their 
engagement, no property passes until the chattel is in a finished 
state, and has been specifically appropriated to the person giving 
the order, and approved and accepted by him. 

As there can be no sale unless of a specific thing, so there is no 
sale but for a price which is certain, or which is capable of being 
made certain by a distinct reference to a certain standard. 



SECTION H. 
DELIVERY AND ITS INCIDENTS. 

When a sale is effected, the buyer has an immediate right to 

the possession of the goods, as soon as he pays Or tenders the price ; 
or at once, without payment, if the sale be on credit. And the 
seller is bound to deliver the goods. 

What is a sufficient delivery is sometimes a question of diffi- 
culty. In general, it is sufficient if the goods are placed in the 
buyer's hands or his actual possession, or if that is done which is the 
equivalent of this transfer of possession. Some modes and instances 
of delivery we have already seen. We add, that if the goods are 
landed on a wharf alongside of the ship which brings them, with 
notice to the buyer, or knowledge on his part, this may be a suffi- 
cient delivery, if usage, or the obvious nature of the case, make it 
equivalent to actually giving possession. And usage is of the 
utmost importance in determining questions of this kind. 



360 THE PROPERTY RIGHTS OF 

In general, the rule may be said to be, that that is a sufficient 
delivery which puts the goods within the actual reach or power of 
the buyer, with immediate notice to him, so that there is nothing to 
prevent him from taking actual possession. 

When, from the nature or situation of the goods, an actual 
delivery is difficult or impossible, as in case of a quantity of timber 
floating in a boom, slight acts, as touching the timber, or even going 
near it and pointing it out, are sufficient to constitute a delivery, if 
they sufficiently indicate the transfer of possession. So if the prop- 
erty which is the subject of the sale is at sea, the indorsement and 
delivery of the bill of lading, or other instrument of title, is suf- 
ficient to constitute a delivery ; and by such indorsement and de- 
livery of the bill of lading the property in the goods immediately 
vests in the buyer ; and he can transfer this to one who buys of 
him, by his own indorsement and delivery of the bill of lading. 

Where goods at sea are sold, the seller should send or deliver 
the bill of lading to the buyer within a reasonable time, that he 
may have the means of offering the goods in the market. And it 
has been held that a refusal of the bill of lading authorized the 
buyer to rescind the sale. 

Until delivery, the seller is bound to keep the goods with or- 
dinary care, and is liable for any loss or injury arising from the 
want of such care or of good faith. But if he exercises ordinary 
care and diligence in keeping the commodity, he is not liable for 
any loss or depreciation of it, unless this arises from some defect 
which he has warranted not to exist. Thus, in a case in New York, 
A sold to B a certain quantity of beef, B paying the purchase- 
money in full ; and it was agreed between them that the beef should 
remain in the custody of A until it should be sent to another place. 
Some time after, B received a part, which proved to be bad, and the 
whole was found, on inspection, to be unmerchantable. The court 
held that, as the beef was good at the time of its sale, the vendee 
(or buyer) must bear the loss of its subsequent deterioration. 

If the buyer lives at a distance from the seller, the seller must 
send the goods in the manner indicated by the buyer. If no direc- 
tions are given, he must send them in such a way as usage, or, in the 
absence of usage, as reasonable care would require. And generally 
all customary and proper precautions should be taken to prevent 
loss or injury in the transit. If these are taken, the goods are sent 
at the risk of the buyer, and the seller is not responsible for any 
loss. But he is responsible for any loss or injury happening through 
the want of such care or precaution. And if he sends them by his own 
servant, or carries them himself, they are in his custody, and, gener- 
ally, at his risk, until delivery. But if the buyer distinctly indicates 



A CITIZEN OF THE UNITED STATES. 361 

the way or means by which he wishes that the goods should be 
sent to him, as by such a carrier, or such a line, if the seller com- 
plies with his directions, and exercises ordinary care over the goods 
until they are delivered to the person or line so pointed out, his 
responsibility ends with this delivery, in the same manner as it 
would if he delivered the goods into the hands of the owner. 

This question of delivery has a very great importance in an- 
other point of view ; and that is, as it bears upon the honesty, and 
therefore the validity, of the transaction. As the owner of goods 
ought to have them in his possession, and as a transfer of posses- 
sion usually does, and always should, accompany a sale, the want 
of this transfer is an indication, more or less strong, that the sale is 
not a real one, but a mere cover. The prevailing rule may be stated 
thus : Delivery is not essential to a sale at common law ; but if 
there is no delivery, and a third party, without knowledge of the 
previous sale, purchases the same thing from the seller, he gains an 
equally valid title with the first buyer; and if he completes this title 
by acquiring possession of the thing before the other, he can hold it 
against the other. So, also, unless delivery or possession accom- 
pany the transfer of the right of property, the things sold are sub- 
ject to attachment by the creditors of the seller. And if the sale be 
completed, and nevertheless no change of possession takes place, and 
there is no certain and adequate cause or justification of the want or 
delay of this change of possession, the transaction will be regarded 
as fraudulent and void in favor of a third party, who, either by 
purchase or by attachment, acquires the property in good faith, and 
without a knowledge of the former sale. This fact, that the thing 
sold remained in the possession of the seller, might be explained, 
and if shown to be perfectly consistent with honesty, and to have 
occurred for good reasons, and especially if the delay in taking pos- 
session was brief, the title of the first buyer would be respected. 

If goods are sold in a shop or store, separated, and weighed 
or numbered if that be necessary, and put into a parcel, or other- 
wise made ready for delivery to the buyer, in his presence, and he 
request the seller to keep the goods for a time for him, this is so 
far a delivery as to vest the property in the goods in the buyer, 
and the seller becomes the bailee of the buyer. And if the goods 
are lost while thus in the keeping of the seller, without his fault, it 
is the loss of the buyer. (In law the word bail means " to deliver." 
Thus a "bailor" is one who delivers a thing to another; the 
"bailee" is the party to whom it is delivered; and " bailment " is 
the delivery. The " bail " of a party who is arrested, is he or they 
to whom the arrested person is delivered or given up, on their 
agreement that he shall be forthcoming when required by law.) 



THE PROPERTY RIGHTS OF 



In a contract of sale there is sometimes a clause providing 

that a mistake in description or a deficiency in quality or quantity, 
shall not avoid the sale, but only give the buyer a right to deduc- 
tion or compensation. But if the mistake or defect be great and 
substautial, and affects materially the availability of the thing for 
the purpose for which it was bought, the sale is nevertheless void, 
for the thing sold is not that which was to have been sold. 

If. the buyer knowingly receives goods so deficient or so dif- 
ferent from what they should have been that he might have refused 
them, he will be held to have waived the objection, and to be liable 
for the whole price, unless he can show a good reason for not 
returning them, as in the case of materials innocently used before 
discovery of the defects, or the like. Thus, where a man bought a 
chandelier warranted sufficient to light a certain room, and kept it 
six months, the court did not permit him to return it and refuse 
payment, although it was not what it had been warranted to be. 
Sometimes two or three months, or even less, is held too long a 
keeping to permit a subsequent return. But though the buyer can- 
not then return the thing, yet, when the price is demanded, he may 
set off whatever damages he has sustained by the seller's breach of 
contract, and the seller can recover only the value to the buyer 
of the goods sold, even if that be nothing. But a long delay or 
silence may imply a waiver of even this right on the part of the 
buyer. 

One who orders many things at one time, and by one bargain, 
may, generally, refuse to receive a part without the rest ; but if he 
accepts any part, he severs that part from the rest, and rebuts (or 
removes) the presumption that it was an entire contract; the buyer 
will then be held as having given a separate order for each thing, 
or part, and as therefore bound to receive such parts as are 
tendered, unless some distinct reason for refusal attaches to them. 
If many several things are bought at one auction, but by different 
bids, and especially if the name of the buyer be marked against 
each, there is a separate sale to him of each one, and it is inde- 
pendent of the others ; so that he must take and pay for any one 
or more, although the others are not what they should be, or cannot 
be had. If, however, it could be shown by the nature of the case, 
or by evidence, that the things were so connected that one was 
bought entirely for the sake of the other, he would not be obliged 
to take the one unless he could have the other. This rule applies 
also when the things sold are lots of land. Indeed, the general rule 
may be stated thus : The question whether it is one contract, so 
that the buyer shall not be bound to receive any part unless the 
whole be tendered to him, will be determined by ascertaining from 



A CITIZEN OF THE UNITED STATES. 363 

all the facts and all the evidence whether the parts so belong 
together that it may reasonably be supposed that none would 
have been purchased if the whole had not been purchased, or if 
any part could not have been purchased. 

The buyer may have, by the terms of the bargain, the right 
of rescinding the sale and redelivering the goods. For sales are 
sometimes made upon the agreement that the purchaser may return 
the goods within a fixed or within a reasonable time. He may have 
this right without any condition, and then has only to exercise it 
at his discretion. But he may have the right to return the thing 
bought only if it turns out to have, or not to have, certain qualities; 
or only upon the happening of a certain event. In such case the 
burden of proof is on him to show that the circumstances exist 
which are necessary to give him this right. In either case the 
property vests in the buyer at once, as in ordinary sales ; but sub- 
ject to the right of return given him by the agreement. If he does 
not exercise his right within the agreed time, or within a reason- 
able time if none be agreed upon, the right is wholly lost, the sale 
becomes absolute, and the price of the goods may be recovered in 
an action for goods sold and delivered. And if during the time 
the buyer so misuse the property as to materially impair its value, 
he cannot tender it back, but is liable for the price. 



SECTION III. 
CONTRACTS VOID FOR ILLEGALITY OR FRAUD. 

As the law will not compel or require any one to do that 

which it forbids him to do, no contract can be enforced at law 
which is tainted with illegality. It may, however, be necessary to 
consider whether the contract be entire or separable into parts, 
and whether it is wholly or partially illegal. If the whole consid- 
eration, or any part of the consideration, be illegal, the promise 
founded upon it is void, whether the promise is legal or not. But 
if the consideration is legal, and the promise is in part legal and in 
part illegal, it is valid for the legal part, and may be enforced for 
that part. Thus, if a master of a vessel agreed to smuggle goods, 
and in consideration of his doing so the owner promised to pay 
him one-fourth of his profits, and also to advance twenty dollars a 
month to his family during a certain time, the master could enforce 
no part of this promise, and recover no damages for any breach of it, 
because the consideration is illegal. But if for one thousand dollars 
paid, the receiver agreed to sell and deliver a certain quantity of 
merchandise, and also to assist the buyer in some contemplated 



rf64 THE PROPERTY RIGHTS OF 

fraud, he would be bound to sell and deliver the goods, because the 
consideration was legal, and this part of the promise was legal, but 
not to assist in the fraud, because this part of the promise is illegal. 
I mean to say, that if a whole promise, or any part of a promise 
that cannot be severed into substantial and independent parts, is 
illegal the whole promise is void. But if the consideration is legal, 
and the promise is legal in part and illegal in part, and that part of 
the promise which is legal can be severed from that part which is 
illegal and then be a substantial promise having a value of its own, 
this legal part can be enforced. For further remarks upon this 
subject, however, I refer to the chapter on Consideration. 

Fraud vitiates and avoids every contract and every transac- 
tion. Hence, a wilfully false representation by which a sale is 
effected ; or a purchase of goods with the design of not paying for 
them ; or hindering others from bidding at auction by wrongful 
means; or selling at auction, and providing buy-bidders, to run 
the thing up fraudulently ; or selling " with all faults," and then 
purposely concealing and disguising them, as when a man adver- 
tised a ship for sale at auction " with all faults," but purposely put 
her in a situation where an important fault could not be easily 
detected ; or any similar act, — will avoid a sale. No title or right 
passes by such sale to the fraudulent party ; but the innocent party, 
whether buyer or seller, may waive the fraud, and insist that the 
fraudulent party shall not take advantage of his own fraud to avoid 
the sale. 

A buyer who is imposed upon by a fraud, and therefore has 
a right to annul the sale, must exercise this right as soon as may 
be after discovering the fraud. He does not lose the right neces- 
sarily by every trifling delay, but certainly does by any considerable 
and unexcused delay. 

A seller may rescind and annul a sale if he were induced to 
make it by fraud. But he may waive the right and sue for the 
price. If, however, the fraudulent buyer gets the goods on a credit, 
and the seller sues for the price before the credit expires, this suit is 
a confirmation of the whole sale, including the credit ; or rather it 
is an entire waiver of his right to annul the sale, and the suit can- 
not be maintained until the credit has wholly expired. 

If a party who has been defrauded by any contract brings 
an action to enforce it, this is a waiver of his right to rescind, and 
a confirmation of the contract. Or if, with knowledge of the fraud, 
he offers to perform the contract on conditions which he had no 
right to exact, this has been held so effectual a waiver of the fraud 
that he cannot set it up in defence, if sued on the contract. 



A CITIZEN OF THE UNITED STATES. 365 

Formerly, an agreement to sell at a future day goods which 
the promisor had not at the time, and had not contracted to buy, 
and had no notice or expectation of receiving by consignment, was 
considered open to the objection that it was merely a wager, and 
therefore void. But later cases have admitted it to be a valid 
contract. 



SECTION IV. 
SALES WITH WARRANTY. 

A sale may be with warranty; and this may be general, or 
particular and limited. A general warranty does not extend to 
defects which are known to the purchaser, or which are open to 
inspection and observation, unless the purchaser is at the time 
unable to discover them readily, and relies rather upon the knowl- 
edge and warranty of the seller. A warranty may also be either 
express or implied. It is not implied by the law generally merely 
from a full, or, as it is called, a sound price. The rule of law, ca- 
veat emptor (let the buyer take care), prevents this. But this rule 
never applies to cases of fraud. As a general rule, however, mere 
silence on the part of the seller is not fraud ; but the usage of the 
trade will be considered, and if that require a declaration of certain 
defects whenever they exist, the absence of such declaration is a 
warranty against such defects. Mere declarations of opinion are 
not a warranty. Thus, in England, an action was brought on a 
warranty that certain goods were fit for the China market. The 
plaintiff produced a letter from the defendant, saying that he had 
goods fit for the China market, which he offered to sell cheap. But 
the court held that such a letter was not a warranty, but merely an 
invitation to trade, it not having any specific reference to the goods 
actually bought by the plaintiff. 

If these declarations are intended to deceive, and have that 
effect, they may avoid the sale for fraud. And affirmations of quan- 
tity or quality, which are made pending the negotiations for sale, 
with a view to procure a sale, and have that effect, will be regarded 
as a warranty ; thus, in New York, it was held that a representation 
made by a vendor, upon a sale of flour in barrels, that it was in 
quality superfine or extra-superfine, and worth a shilling a barrel 
more than common, coupled with the assurance to the buyer's 
agent that he might rely upon such representation, was a warranty 
of the quality of the flour. So in England, where upon the sale 
of a horse the vendor said to the vendee, " You may depend upon 
it, the horse is perfectly quiet and free from vice ; " this was held to 



366 THE PROPERTY RIGHTS OF 

amount to an express warranty that he was quiet and free from 
vice. 

Goods sold by sample are warranted by such sale to conform 

to the sample ; but there is no warranty that the sample is what it 
appears to be. Thus, in England, there was a sale of five bags of 
hops, with express warranty that the bulk answered the samples by 
which they were sold. The sale was in January ; at that time the 
samples fairly answered to the commodity sold, and no defect was 
at that time perceptible to the buyer. In July following, every bag 
was found to have become unmerchantable and spoiled, by heating, 
caused probably by the hops having been fraudulently watered by 
the grower or some other person, before they were purchased by 
the defendant. The seller knew nothing of this fact at the time of 
sale, and the samples were as much damped as the rest; and it 
was then impossible to detect it. It was held' by the court that 
there was here no implied warranty that the bulk of the com- 
modity was merchantable at the time of sale, although a mer- 
chantable price was given. 

A breach of warranty does not always authorize the buyer 
to return the article sold, unless there be an agreement to that 
effect, or fraud ; but only to sue on the warranty, and recover dam- 
ages on the breach of it. But if one orders a thing for a special 
purpose known to the seller, he may certainly return it if it be unfit 
for that purpose, if he does so as soon as he ascertains its un- 
fitness. 

The seller of goods actually in his possession as owner, if he 
sells as owner, is held to warrant his own title by the fact of the 
gale. But if the property be not in the possession of the vendor, 
and there be no assertion of ownership by him, no implied warranty 
of title arises. 

If a thing is ordered for a special purpose, and is supplied, 
there is an implied warranty that it is fit for that purpose. In one 
case, the defendant was a dealer in ropes, and represented himself 
to be a manufacturer of the article. The buyer, a wine-merchant, 
applied to him for a crane-rope. The seller's foreman went to the 
buyer's premises, in order to ascertain the dimensions and kind of 
rope required. He examined the crane and the old rope, and took 
the necessary admeasurements, and was told that the new rope was 
wanted for the purpose of raising pipes of wine out of the cellar, 
and letting them down into the street; when he informed the buyer 
that a rope must be made on purpose. The seller did not make the 
rope himself, but sent the order to his manufacturer, who employed 
a third person to make it. It was held that, as between the parties 
to the sale, there was an implied warranty that the rope was a fit 



A CITIZEN OF THE UNITED STATES. 367 

and proper one for the purpose for which it was ordered. And the 
seller was held responsible not only for the rope, which broke, but 
for a pipe of wine which was thereby lost. 

This principle must not be applied to those cases where an 
ascertained article is purchased, although it be intended by the 
purchaser for a special purpose. For if the thing itself is specifi- 
cally selected and purchased, the purchaser takes upon himself the 
risk of its effecting its purpose. This is illustrated in an English 
case, thus : " If a man says to another, ' Sell me a horse fit to carry 
me,' and the other sells a horse which he knows to be unfit to ride, 
he will be liable for the consequences ; but if a man says, ' Sell me 
that gray horse to ride,' and the other sells it, knowing that the 
buyer will not be able to ride it, that would not make him liable." 
If he said, " Sell me that gray horse if he is fit to ride," and the 
seller sold it knowing he was not fit, he would be liable. 

It has been much discussed whether a bill of sale, describing 
the article sold, amounts to a warranty that the article conforms 
to the description. It seems now to be well settled that it does. 
In a Massachusetts case, there was a bill of sale as follows : " H. 
& Co. bought of T. W. & Co. two cases of indigo, $272." The 
article sold was not indigo, but principally Prussian blue. "No 
fraud was imputed to the seller, and the article was so prepared as 
to deceive experienced and skilful dealers in indigo. The naked 
question was presented, whether the bill of sale constituted a war- 
ranty that the article sold was indigo. And the court held that it 
did. Here the warranty implied by the bill of sale was as to the 
kind of goods. In another case the bill was, " Sold E. T. H. 2,000 
gallons prime quality winter oil" The thing sold was oil, and 
winter oil ; but not prime quality. And the court held that the 
bill of sale amounted to a warranty that it was of that quality. 
In an English case, a vessel was advertised for sale as " copper 
fastened;" and this was held to be a warranty that she was so 
fastened, according to the usual understanding of merchants. 

One who sells provisions is always considered in law as war- 
ranting that they are good and wholesome. 



(69.) 

BILL OF SALE OF PERSONAL PROPERTY. 

Know all men by these presents, That I (name of the seller), in 
the county of for and in consideration of the sum of 

to in hand well and truly paid, at or before signing, sealing, 

and delivery of these presents, by (name of the buyer), the receipt whereof 



368 THE PROPERTY RIGHTS OF 

I the said do hereby acknowledge, have granted, bargained, 

and sold, and by these presents do grant, bargain, and sell, nnto the said 

To have and to hold the said granted and bargained 
unto the said heirs, executors, administrators, and assigns, to 

only proper use, benefit, and behoof for ever, and the said 

does vouch himself to be the true and lawful owner of the goods and effects 
hereby sold, and to have in himself full power, good right, and lawful 
authority to dispose of the said in manner as aforesaid, and 

I do, for myself, my heirs, executors, and administrators, hereby covenant 
and agree to warrant and defend the said {the goods sold) unto the said 
heirs, executors, administrators, and assigns, against the law- 
ful claims and demands of all persons whomsoever. 

In witness whereof, the said have hereunto 

set hand and seal , this day of in the 

year of our Lord one thousand eight hundred and sixty- 
Executed and delivered in presence of 



(70.) 

BILL OF SALE OF PERSONAL PROPERTY, WITH A CONDITION TO 
MAKE IT A MORTGAGE, WITH POWER OF SALE. 

Know all men by these presents, That in considera- 

tion of paid by the receipt whereof is hereby 

acknowledged, do hereby grant, sell, transfer, and deliver unto the said 
the following goods and chattels, namely : 

To have and to hold all and singular the said goods and chattels 
to the said and executors, administrators, and 

assigns, to their own use and behoof for ever. 

And hereby covenant with the grantee that the lawful 

owner of the said goods and chattels; that they are free from all incum- 
brances, that have good right to sell the same as 
aforesaid; and that will warrant and defend the same against 
the lawful claims and demands of all persons. 

Provided, nevertheless, That if the grantor , or execu- 

tors, administrators, or assigns, shall pay unto the grantee , or 
executors, administrators, or assigns, the sum of in 

from this date, with interest semi-annually at the rate of per 

cent per annum, and until such payment shall not waste or destroy the 
same, nor suffer them or any part thereof to be attached on mesne process; 
and shall not, except with the consent in writing of the grantee or 

representatives, attempt to sell or to remove from 
the same or any part thereof, — then this deed, as also note of 

even date herewith, signed by the said whereby prom- 

ise to pay to the grantee or order the said sum and interest at the times 
aforesaid, shall be void. 



A CITIZEN OF THE UNITED STATES. 369 

But upon any default in the performance of the foregoing condi- 
tion, the grantee or • executors, administrators, or assigns, 
may sell the said goods and chattels by public auction, first giving 
days' notice in writing of the time and place of sale to the grantor or 
representatives. And out of the money arising from such 
sale the grantee or representatives shall be entitled to retain 
all sums then secured by this mortgage, whether then or thereafter pay- 
able, including all costs, charges, and expenses incurred or sustained by 
them in relation to the said property, or to discharge any 
claims or liens of third persons affecting the same, rendering the surplus, 
if any, to the grantor or executors, administrators, or assigns. 

And it is agreed that the grantee or executors, ad- 

ministrators, or assigns, or any person or persons in their behalf, may 
purchase at any sale made as aforesaid ; and that, until default in the per- 
formance of the condition of this deed, the grantor and 
executors, administrators, and assigns, may retain possession of the 
above-mortgaged property, and may nse and enjoy the same. 

In witness whereof, the said hereunto set 

hand and seal and affix and cancel the stamp required by 
law, this day of in the year one thousand eight 

hundred and 

Signed, sealed, and delivered in presence of 



SECTION V. 
THE SALE OF ONE'S BUSINESS. 

Such sales are not unfrequent in this country; and the seller 

always agrees and promises that he will not pursue that trade, busi- 
ness, or occupation again. There are numerous cases, both in Eng- 
lish law-books and in our own, which have arisen from bargains of 
this kind. The law seems now to be settled, that such a contract 
is wholly void and inoperative, provided the seller agrees to give 
up his business and never resume it again, at any time or anywhere; 
that is, without any limitation of space or time ; because it is against 
the public interest that a man should be permitted to cast himself 
out from his business or trade for the rest of his life. But the con- 
tract is good, if for a fair consideration the seller agrees not to 
resume or carry on that business within a certain time, or within 
certain limits. What these limits must be is not certain. The 
courts say they must be " reasonable," and made in good faith. A 
contract not to carry on a business in a certain town would undoubt- 
edly be good. So, we should say, would be a bargain not to do so 
within a certain State. In one case in Massachusetts, a contract 
not to use certain machines in any of the United States except two 
(which were Massachusetts and Rhode Island) was held valid, all 

24 



370 THE PROPERTY RIGHTS OF 

of the States but two being considered as a sufficiently defined or 
limited place ; but this was unusual. The courts generally would 
sanction a sale of one's business, if it were limited to only a part of 
the United States; as to all New England, for example. 

In such a contract, it would be better for the parties to agree 
upon the amount which the seller should pay by way of damages, 
if he violated his bargain, because it might be very difficult to prove 
specific damages ; and such a bargain, if it were reasonable, would 
be enforced by law. 

Such damages, agreed on beforehand, are called "liquidated 
damages." In all cases where damages are demanded, and are not 
agreed on, they are called unliquidated damages, and it is the duty 
of the jury to determine, from the evidence before them, what dam- 
ages the injured party has suffered, and what amount would indem- 
nify him. 



SECTION VI. 
STOPPAGE IN TRANSITU. 

Here is an instance where a Xatin phrase has become English, 

by general adoption and use. In transitu means " in the transit," 
and the English phrase may just as well be used ; but the Latin one 
is used much oftener, at least by lawyers. The whole phrase " stop- 
page in transitu " means, " a stoppage of goods while on their way to 
the buyer." Thus a seller, who has sent goods to a buyer at a dis- 
tance, and after sending them learns that the buyer is insolvent, may 
stop the goods at any time before they reach the buyer. His right 
to do this is called the right of stoppage in transitu. 

If the goods are sent to pay a precedent and existing debt of 
the sender, they are not subject to this right. 

The right exists only upon actual insolvency ; but this need not 
be formal insolvency, or bankruptcy at law : an actual inability to 
pay one's debts in the usual way being enough. If the seller, in 
good faith, stops the goods, in a belief of the buyer's insolvency, 
the buyer may at once defeat this stoppage, and reclaim the goods, 
by payment of the price. So he may, by a tender of adequate se- 
curity, if the sale be on credit. 

The stoppage must be effected by the seller, and evidenced by 
some act ; but it is not necessary that he should take actual posses- 
sion of the goods. If he gives a distinct notice to the party in 
possession, whether carrier, warehouseman, middleman, or whoever 
else, before the goods reach the buyer, this is enough. But a notice 
of stoppage in transitu, to be effectual, must be given either to the 



A CITIZEN OF THE UNITED STATES. 371 

person who has the immediate custody of the goods ; or if to the 
principal whose servant has the custody, then at such a time and 
under such circumstances as that he may, by the exercise of reason- 
able diligence, communicate it to his servant in time to prevent the 
delivery to the consignee. 

Goods can be stopped only while in transitu ; and they are in 
transitu only until they come into the possession of the buyer. But 
this possession need not be actual, a constructive possession by the 
buyer being sufficient to prevent this stoppage ; as, if the goods are 
placed on the wharf of the buyer, or on a neighboring wharf with 
notice to him ; or in a warehouse with delivery to him of the key 
or of an order on the warehouseman ; in these cases they can no 
longer be stopped, because the transit is ended. 

The entry of the goods at the custom-house, without payment 
of duties, does not terminate the transit. If the buyer has de- 
manded and marked them at the place where they had arrived 
on the termination of the voyage or journey, personally or by his 
agent ; or if the carrier still holds the goods, but only as the agent 
of the buyer, — in all' these cases the transit is ended. But if the 
carrier holds them by a lien for his charges against the buyer, the 
seller may pay these charges and discharge the lien, and then stop 
the goods in transitu. 

If the buyer has, in good faith and for value, sold the goods, 
" to arrive," before he has received them, and indorsed and delivered 
the bill of lading to his purchaser, this second purchaser holds the 
goods free from the first seller's right to stop them. But if the 
goods and bill are transferred only as security for a debt due from 
the first purchaser to the transferee, the original seller may stop the 
goods, and hold them subject to this security, and need pay only 
the specific advances made on their credit, or on that very bill of 
lading, and not a general indebtedness of the first purchaser to the 
second. 

A seller who stops the goods in transitu does not rescind the 
sale, but holds the goods as the property of the buyer; and they 
may be redeemed by the buyer or his representatives, by paying the 
price for which they are a security ; and if not redeemed, they 
become the seller's, only in the same way as a pledge might become 
his; that is, he may sell them at a proper time, and in a proper 
manner, and with due notice, so that the buyer may protect his 
interests. And if the seller then fails to obtain from them the full 
price due, he has a claim for the balance upon the buyer. If he gets 
more than the amount due to him, he must pay over the balance to 
the buyer or his assignees. 



372 THE PROPERTY MGHTS OF 

An honest buyer, apprehending bankruptcy, might wish to 
return the goods to their original owner ; and this he could un- 
doubtedly do, if they have not become distinctly his property, and 
the seller be his creditor for the price. But if they have, the buyer 
has no more right to benefit this creditor by such an appropriation 
of these goods, than any other creditor by giving him any other 
goods. 



CHAPTER VII. 
MOKTGAGES OF GOODS AND CHATTELS. 

Mortgages are now often made of personal property, or goods 

and chattels. The instrument need not be so formal as a mort- 
gage deed of land. Any instrument will answer the purpose which 
would suffice as a bill of sale of the property, and which contains, 
in addition to the words of sale and transfer, a clause providing for 
the avoidance of it when the debt is paid. I append to this chapter 
forms for this purpose. 

When the mortgagor of personal property retained possession, it 
was formerly doubtful what security the mortgagee had. Now, how- 
ever, it is generally provided by statute that the mortgagor may 
retain possession, if the mortgage be recorded. 

These instruments should always be recorded according to the 
provisions of the statute of the State in which they are made ; 
although the general rule would apply to them, that they would 
operate without record, as to all parties having notice or knowledge 
of them. 

The statutes respecting mortgages of personal property always 
provide for an equity of redemption, which is usually very much 
shorter than that of land. A frequent period is sixty days. The 
requirements of the statute in respect to notice, foreclosure, <fcc, 
must be strictly followed. 

It used to be thought that a personal mortgage might be made 
to cover property subsequently acquired by the mortgagee. Thus, a 
dealer in dry goods would mortgage all his stock to secure some 
creditor, and provide in the mortgage that it should operate upon 
all his goods and merchandise subsequently acquired by him. But 
it has been held that such a clause has no effect ; because no man 
can make a mortgage of property which he does not own at the 
time. 



A CITIZEN OF THE UNITED STATES. 373 



THE FLEDGE OP PERSONAL PROPERTY. 

A pledgee (or one to whom a pledge is made) is bound to take 

ordinary (not extreme) care of the thing pledged ; and if it be lost 
or injured for want of such care, he is answerable. 

He cannot nse it, except at his own peril ; that is, he is liable 
for any injury caused by using it, even if it was not his fault. If 
the thing — as a horse — needs use for its own safety, then the 
pledgee may use it tor this purpose, and is liable only for an injury 
caused by his negligence. 

He must account with the pledgor for the income, increase, 
or profits. 

One difference between a mortgagee and a pledgee is this : a 
mortgagee need not take possession, for the mortgagor may retain it ; 
and now this is provided for, as we have seen, by recording the 
mortgage. But if a thing is given in pledge, the pledgee must 
have and keep possession of it. 

The most important difference is this: a mortgagee may sell 
and transfer his mortgage, and his transferee may transfer it again, 
and so on ; and when the debt is paid, the mortgagor reclaims it 
from whomsoever has it then. But if a pledgee sells the pledge 
before the debt is due, it is held that he is at once answerable to 
the pledgor for its full value, although the debt be not paid. 

Some cases of this kind have been carried very far in New 
York. It is held there — and on grounds which may perhaps suf- 
fice to make it law everywhere — that if A lends money to B, and 
takes stocks in pledge, A cannot sell these stocks and keep the 
proceeds, and replace the stock and return it when the debt is 
paid. He can do nothing but keep the stock ; and if he sells it, the 
pledgor may recover at once its full value, and the pledgee will 
have no security for his debt. In such a case, a pledgee, being sued, 
offered the testimony of brokers and others to prove a uniform and 
established usage in the city of New York thus to sell or use 
pledged stock until the debt was paid; but the court said the 
usage was illegal, and refused to consider the evidenee. 

It is certain that, after the debt is due and payable, and after- 
demand if it be payable on demand, the pledgee may have a 
decree in chancery for the sale of the pledge, or may sell it himself, 
provided he first gives a reasonable notice to the pledgor, and then 
sells it, after a reasonable delay, in a proper manner, by a public 
sale at auction ; and uses all reasonable precautions to get its value, 
as by advertisement, &c. ; and does not buy it himself, directly or 
indirectly ; and conducts himself in all respects honestly ; and then 
he must account for the proceeds. 



374 THE PROPERTY RIGHTS OF 



Sometimes the parties agree, when the pledge is given, or after- 
wards, how the pledge shall be treated, or how sold if not re- 
deemed, &c. ; and such agreements, if fair and reasonable, would 
undoubtedly be binding on both parties. 

It is agreed that negotiable paper is excepted from the common 
rule ; and the pledgee of that may sell or discount it before the 
debt is due; and must account for it, or its proceeds, if the debt is 
paid and the paper redeemed, or for the balance if the note is paid 
to him, and he applies it to payment of the debt. 

A loan of stock is not like a pledge of stock, because it author- 
izes the borrower to sell or pledge it, or use it in any way, at any 
time ; but he must replace and return the same quantity of the same 
stock, when it is called for. If he could not thus make use of the 
stock, the loan of it would be of no benefit whatever to the borrower. 
But he cannot thus use stock pledged to him, unless by a special 
agreement which permits this use. 

A pledgee, who receives a pledge to secure one or more specific; 
debts, cannot retain it to secure other and further debts of the 
pledgor, unless with his consent. This consent may be express, or 
implied from words or circumstances which show that such was the 
understanding of the parties. 

FORMS ANNEXED TO THIS CHAPTER. 

(71.) A mortgage of personal property. 
(72.) A mortgage of personal property, with warranty. 
(73.) A mortgage of personal property, with a power of sale. 
(74.) A mortgage of personal property, with a power of sale. Another 
form. 

(71.) 

A MORTGAGE OF PERSONAL PROPERTY. 

Know all men by these presents, That I (name of mortgagor), of 
the town of county of and State of for and 

in consideration of dollars, to me in hand paid by (name of 

mortgagee), of the town of county of and State 

aforesaid, do sell and convey to the said {name of mortgagee) the following 
goods and chattels, to wit (list or schedule of the articles, specifying them ivith 
sufficient distinctness to make it certain what they are), warranted free of in- 
cumbrance, and against any adverse claims: Upon condition, that if the 
said (name of the mortgagor) pay to the said (name of the mortgagee) 
dollars and interest, in year , agreeably to a promissory note of 

this date, for that sum, payable to the said (name of mortgagee), or order, 
on demand, with interest, this deed shall be void; otherwise, in full force 
and effect. 



A CITIZEN OF THE UNITED STATES. 375 

The aforesaid parties agree, That, until the condition of this 
instrument is broken, the said property may remain in possession of the 
said ( name of mortgagor), but after condition broken the said (name of 
mortgagee) may at his pleasure take and remove the same, and may enter 
into any building or premises of the said (name of the mortgagor) for that 
purpose. 

Witness our hands and seals, this day of a.d. 18 

(Signature of mortgagor.) (Seal.) 
(Signature of mortgagee.) (Seal.) 

Sealed and delivered in presence of 

State of 1 

> ss. 
County of ) 

Be it remembered, That on this day of eighteen 

hundred and before me, the undersigned, notary public in 

and for said county and State, duly commissioned and qualified, came 
■who is known to me to be the same person whose name is 
subscribed to the foregoing instrument of writing, as party thereto, and 
he acknowledged the same to be his act and deed, for the purpose therein 
mentioned. 

In testimony whereof, I have hereunto set my hand and affixed my 
official seal, at my office, in the city of the day and year last 

aforesaid. 

Notary Public. 

(72.) 

A MORTGAGE OF PERSONAL PROPERTY, WITH WARRANTY. 

Know all men by these presents, That I (name and residence of 
mortgagor), in consideration of the sum of to me in hand paid 

by (name and residence of mortgagee) , the receipt whereof is hereby acknowl- 
edged, have granted, bargained, and sold, and by these presents do grant, 
bargain, and sell, unto the said (name of mortgagee) , the following arti- 
cles of personal property; that is to say (list or schedule, as in Form 71). 

To have and to hold all and singular the said goods and chattels 
unto the said (name of the mortgagee), and his executors, administrators, 
and assigns, to his and their use for ever. And I, the said mortgagor, for 
myself and for my executors and administrators, do covenant to and with 
the said mortgagee, and with his executors, administrators, and assigns, 
that I am lawfully possessed of the said goods and chattels, as of my own 
property; that the same are free from all incumbrances, and 

that I will, and my executors and administrators shall, warrant and defend 
the same to the said mortgagee, his executors, administrators, and assigns, 
against the lawful claims and demands of all persons. 

Provided, nevertheless, That if the said mortgagor, his executors 
or administrators, shall well and truly pay unto the said mortgagee, his exec- 
utors, administrators, or assigns, the sum of dollars, in 
months from the date hereof (or on a certain day, stating the day when the 



376 THE PROPERTY RIGHTS OF 

money is to be paid), with interest at per cent, then this deed, as also 

a certain promissory note bearing even date herewith, signed 

by the said mortgagor, whereby he promises to pay the said mortgagee the 
said sum and interest at the time aforesaid, shall both be void ; otherwise, 
shall remain in full force and virtue. 

And provided, also, That until default by the said mortgagor, or 
his executors and administrators, in the performance of the condition afore- 
said, or of some part thereof, it shall and may be lawful for him or them 
to keep possession of the said granted property, and to use and enjoy the 
same; but in case of such default, or if the same or any part thereof shall 
be attached, at any time before payment as aforesaid, by any other creditor 
or creditors of the said mortgagor, or if the said mortgagor, or his execu- 
tors or administrators, shall attempt to sell the same, or any part thereof, 
without notice to the said mortgagee, or his executors, administrators, or 
assigns, and without his or their assent to such sale in writing expressed, 
or shall remove the same, or any part thereof, from the place in which 
they now are, without such notice and assent, then it shall be lawful for 
the said mortgagee, or his executors, administrators, or assigns, to take 
immediate possession of the whole of said granted property, to his and 
their own use. 

In testimony whereof, I have hereunto set my hand and seal, this 
day of in the year of our Lord one thousand eight 

hundred and sixty- 

(Signature.) (Seal.) 

Executed and delivered in presence of 



(73.) 

A MORTGAGE OF PERSONAL PROPERTY, WITH A POWER OF SALE. 

Know all men by these presents, That I (name of mortgagor), of 
the town (or city) of in the county of and State of 

in consideration of dollars to me paid by ( name 

of mortgagee) , of the town (or city) of in the county of 

and State of the receipt whereof is hereby acknowledged, do 

hereby grant, bargain, and sell unto the said (name of mortgagee) and his 
assigns, for ever, the following goods and chattels, to wit (list or schedule, 
as in Form 71). 

To have and to hold all and singular the said goods and chattels 
unto the mortgagee herein, and his assigns, to their sole use and behoof 
for ever. And the mortgagor herein, for himself and for his heirs, ex- 
ecutors, and administrators, does hereby covenant to and with the said 
mortgagee and his assigns, that said mortgagor is lawfully possessed of 
the said goods and chattels, as of his own property; that the same are 
free from all incumbrances; and that he will warrant and defend the same 
to him the said mortgagee and his assigns against, the lawful claims and 
demands of all persons. 

Provided, nevertheless, That if the said mortgagor shall pay to the 
mortgagee, on the day of in the year 



A CITIZEN OF THE UNITED STATES. 377 

the sum of dollars, then this mortgage is to be void; otherwise, 

to remain in full force and effect. 

And provided, further, That until default be made by the said 
mortgagor in the performance of the condition aforesaid, it shall and may 
be lawful for him to retain the possession of the said goods and chattels, 
and to use and enjoy the same; but if the same or any part thereof shall 
be attached or claimed by any other person or persons at any time before 
payment, or the said mortgagor or any person or persons whatever, upon 
any pretence, shall attempt to carry off, conceal, make way with, sell, or 
in any manner dispose of the same or any part thereof, without the au- 
thority and permission of the said mortgagee or his executors, administra- 
tors, or assigns, in writing expressed, then it shall and may be lawful for 
the said mortgagee, with or without assistance, or his agent or attorney, or 
his executors, administrators, or assigns, to take possession of said goods 
and chattels, by entering upon any premises wherever the same may be, 
whether in this county or State, or elsewhere, to and for the use of said 
mortgagee or his assigns. And if the moneys hereby secured, or the mat- 
ters to be done or performed, as above specified, are not duly paid, done, 
or performed at the time and according to the conditions above set forth, 
then the said mortgagee, or his attorney or agent, or his executors, admin- 
istrators or assigns, may, by virtue hereof, and without any suit or pro- 
cess, immediately enter and take possession of said goods and chattels, and 
sell and dispose of the same at public or private sale ; and after satisfying 
the amount due, and all expenses, the surplus, if any remain, shall be paid 
over to said mortgagor or his assigns. The exhibition of this mortgage 
shall be sufficient proof that any person claiming to act for the mortgagee 
is duly made, constituted, and appointed agent and attorney to do whatever 
is above authorized. 

In witness whereof, The said mortgagor has hereunto set his hand 
and seal, this day of in the year of our Lord one 

thousand eight hundred and 

(Signature of mortgagor.) (Seal.} 

Signed, sealed, and delivered in presence of 



•1 



State of 

County. 

This mortgage was acknowledged before me, by (the mortgagor), this 
day of a.d. 18 

(Signature.) 

(74.) 

A MORTGAGE OF PERSONAL PROPERTY, WITH A POWER OF SALE 
ANOTHER FORM. 

Know all men by these presents, That I (name and residence of 
mortgagor), in consideration of the sum of to me paid by (name 

and residence of mortgagee) , the receipt whereof is hereby acknowledged, 
have granted, bargained, and sold, and by these presents do grant, bar 



378 THE PROPERTY RIGHTS OF 

gain, and sell, unto the said (name of mortgagee) , the following named and 
described articles of personal property; that is to say (here follows the list 
or schedule and description of the articles mortgaged, as in Form 71). 

To have and to hold all and singular the said goods and chattels 
unto the said {name of mortgagee) , and his executors, administrators, and 
assigns, to his and their sole use for ever. And I, the said mortgagor, for 
myself and my executors and administrators, do covenant to and with the 
said mortgagee and his executors, administrators, and assigns, that I am 
lawfully possessed of the said goods and chattels, as of my own property; 
that the same are free from all incumbrances; and that I will, and my 
executors and administrators shall, warrant and defend the same to the 
said mortgagee and his executors, administrators, and assigns, against the 
lawful claims and demands of all persons. 

Provided, nevertheless, That if the said mortgagor, or his execu- 
tors or administrators, shall well and truly pay unto the said mortgagee, 
or his executors, administrators, or assigns, the sum of then 

this deed, as also a certain promissory note bearing even date herewith, 
signed by the said mortgagor, whereby he promises to pay the said mort- 
gagee the said sum and interest at the time aforesaid, shall both be 
void; and otherwise they shall remain in full force and virtue. 

And provided, also, That until default by the said mortgagor, or his 
executors and administrators, in the performance of the condition afore- 
said, or of some part thereof, it shall and may be lawful for him or them 
to keep possession of the said granted property, and to use and enjoy the 
same; but in case of such default, or if the same or any part thereof shall 
be attached at any time before payment as aforesaid, by any other creditor 
or creditors of the said mortgagor, or if the said mortgagor, his executors 
or administrators, shall attempt to sell the same or any part thereof with- 
out notice to the said mortgagee or his executors, administrators, or assigns, 
and without his or their assent to such sale in writing expressed; or shall 
remove the same, or any part thereof, from the place where they now are, 
without such notice and assent, then it shall be lawful for the said mort- 
gagee, his executors, administrators, or assigns, to take immediate posses- 
sion of the whole of said granted property to his or their own use, and to 
sell and dispose of the whole or of so much of said granted property at 
public auction as shall produce a sum of money sufficient to pay and dis- 
charge the above-mentioned debt or liability, with interest, and all costs 
and charges of keeping and selling the same, and all just and equitable 
liens then existing thereon, without further notice or demand, except 
giving days' notice of the time and place of said sale to said mort- 

gagor or his legal representatives; and after the said debt or liability, with 
interest, costs, charges, and liens, shall be so discharged and satisfied, the 
surplus of the money arising from said sale, and the residue of said granted 
property, shall be paid and restored to said mortgagor or his legal repre- 
sentatives, discharged from all claim under this mortgage. 

In testimony whereof, I, the said (name of mortgagor) , 

have hereunto set my hand and seal, this day of 

in the year of our Lord one thousand eight hundred and 

(Signature. ) (Seal. ) 

Executed and delivered in presence of 



A CITIZEN OF THE UNITED STATES. 379 



CHAPTER VIII. 

LETTING AND HIRING OF EEAL 
PROPERTY. 

LEASES. 

A lease is a contract, whereby one party (the tenant) takes 
the possession of the land and all that is on it, and the other party 
(the landlord) gives possession of the land, and reserves (that is, 
agrees to take) a rent, which the tenant agrees to pay him by way 
of compensation. 

All things nsnally comprehended nnder the words "house," 
" farm," " land," " store," &c, pass to the tenant, where such words 
are used, unless there be an express exception. And inaccuracies 
as to qualities, names, measurements, or amounts will be corrected, 
if there be enough in the lease to make the purposes and intentions 
of the parties certain. And letting to hire any thing to be used 
carries with it all those appurtenances and accompaniments neces- 
sary for the proper use and enjoyment of the thing which belong to 
the lessor. 

A landlord is bound to put his lessee into possession with good 
title. If he covenants " to renew " generally, this means a renewal 
of the lease on the same terms, but without inserting in the new 
lease another covenant of renewal. 

A landlord is under no legal obligation to repair the honse, 
unless he expressly agrees to do so. If the house is never so much 
dilapidated and disfigured as to paper, paint, &c, and locks and 
blinds and doors and windows are out of order, and the like, the 
tenant can claim nothing of the landlord. Even if it becomes 
wholly uninhabitable by no fault of the house or of the landlord, 
as if it burns up, or is blown down, or if the overflow of a stream 
ruins a field or a farm, still the landlord is not bound to do any 
thing, unless by special agreement, and is entitled to his rent under 
a common lease. Leases usually now provide for such cases. 

But if the house is uninhabitable by its own fault, as if it has 
a noisome and unwholesome stench, or, according to one case, if it be 
overrun with rats, or if it be so decayed as to be open to the weather, 
it would seem to be the law of this country that the tenant may 
leave the house ; always provided, however, that the objection or 
defect be not one which the tenant knew or anticipated, or would 



380 THE PROPERTY RIGHTS OF 

have known or expected if he had made reasonable inquiry and 
investigation before he took his lease. And perhaps no tenant 
can leave his house or refuse or abate his rent, for any objection 
or difficulty arising after he hires the house. But, strange to 
say, the important question what the tenant's rights are in such 
a case is still uncertain. 

If the house be wholly destroyed, the tenant must still pay 
rent, under an ordinary lease ; because the law looks upon the 
land as the principal thing, and the house as secondary. And 
not only so, but if the tenant covenants "to return and redeliver 
the house at the end of the term, in good order and condition, 
reasonable wear and tear only excepted," he would be bound 
under this agreement to rebuild the house if it were burned down. 
But recently all well-drawn leases have clauses providing that the 
rent shall cease or be abated while the premises are uninhabitable 
from fire or any other unavoidable calamity. A similar exception 
is added to the clause about returning the house at the end of the 
lease. If this exception be in, a tenant is not bound to rebuild, 
even if the bouse be burned through the carelessness of himself or 
his servants. 

A tenant of a room, or of a suite of chambers, is entitled 
to the use of all the appurtenances and accommodations which 
fairly go with it, as of the front door and entry, water-closets, 
and of all windows, &c, proper to the enjoyment of what he hires. 
But an express agreement about these things, and cellar-room, 
pump, and the like, is always safest. 

The tenant is not bound to make general repairs, without an 
express agreement. But he must make such as are necessary to 
preserve the house from injury ; as from rain, if shingles or slates 
are blown off or glass broken. And he would be bound even for 
proper ornamental repairs, as paper and paint, under a covenant to 
return " in good order." 

The tenant of a farm is bound, without express covenants, to 
manage and cultivate the same in such a manner as good hus- 
bandry and the usual course of management of such farms in his 
vicinity would require. 

The times for payment of rent are usually specified in the 
lease ; if not, they would be governed by the usage of the country, 
if there were any of sufficient distinctness and force. 

A tenant under a lease which says nothing about underletting 
has a perfect right to underlet, remaining himself bound for his 
rent to his landlord. 

If there be a clause prohibiting him from underletting or as- 
signing, and he agrees not to, nevertheless he may do so without 



A CITIZEN OF THE UNITED STATES. 381 

forfeiting the land ; but he will be, as before, liable for rent : and 
besides this, he will be responsible in an action for any damages 
which the landlord can show that he has sustained by such 
underletting. 

It is usual to go further in the lease than this, and provide 
that such underletting shall make a forfeiture of the lease, and 
authorize the landlord to enter upon the premises and turn the 
tenant out. Where there is this covenant, if the tenant now 
underlets, the landlord cannot avail himself of the clause of for- 
feiture and turn the tenant out, and afterwards hold the tenant for 
his rent. He may either hold him for his rent, and also for dam- 
ages, or he may terminate the lease ; but cannot do both. That is, 
if he continues to hold the tenant responsible for rent, he cannot 
prevent the tenant's letting somebody else occupy the house and 
pay to him (the tenant) the rent which he pays to the landlord. 

A tenant is not responsible for taxes, unless it is expressly 
agreed in the lease that he shall be. 

A tenant of a farm, if his lease is terminated by any event 
which was uncertain, and which he could neither foresee nor con- 
trol, is entitled to the annual crop which he sowed while his interest 
in and right to the farm continued. 

If a lease be for a certain time, the tenant loses all right or 
interest in the land or premises when that time comes, and he 
must leave, or the landlord may turn him out at once. But he is 
a tenant at will if he holds over after a lease with consent, or if he 
occupies the land or house or store without a lease but with consent 
and an oral bargain ; and a tenant at will cannot leave, nor can he 
be turned out, without a notice to quit. The law on this subject is 
not uniform. In general, however, it is this: if rent is payable 
quarterly, or not more frequently, then there must be a quarter's 
notice. If rent is payable oftener, then the notice must be as long 
as the period of payment. Thus, if rent is payable monthly, there 
must be a month's notice; if weekly, a week's notice. But the 
notice must terminate on a day when the rent is payable. It may 
be given at any time, but operates only after the required interval 
or period between two payments. Thus, if a tenant whose lease 
terminates on the 31st of December holds over by- consent, and pays 
rent quarterly, and the landlord wishes that he should leave the 
house on the last day of September, he may give notice on the 
preceding 30th day of June, or any day preceding that. But if 
he gives notice on any day before the 30th of June, the tenant will 
still have a right to stay until the 30th of September. Properly, 
the notice should specify the day, and the right day, when the 
tenant must leave ; and should be in writing. 



382 THE PROPERTY RIGHTS OF 

Where the rent is in arrear, the notice to quit may he more 

brief; the statutes of the different States vary on this point, but a 
frequent period is fourteen days. And if notice to quit is given 
because the rent is unpaid, it may be given at any time, and will 
operate at the end of the period which the law designates ; but it 
should specify the day on which the tenant must quit. 

A tenant may give notice of his intention to quit ; and generally 
it will be subject to the same rules already stated in reference to 
the notice given by a landlord. A tenant should give his notice to 
the party to whom he is bound to pay rent, or to an authorized 
agent of that party. 

FIXTURES. 

It is quite important that both tenant and landlord should have 
some knowledge of the law of fixtures ; for this tells them what 
things the tenant may take away and what he cannot. For there 
are many things which a tenant may add, and afterwards remove, 
and many which he cannot remove. The method of affixing them 
may be a useful criterion, as it indicates the purpose of removal or 
otherwise. If with screws, or in such a way as to show that 
removal was intended, things may be taken away, when, if the 
same things were fastened more permanently, they could not be. 
In modern times the rule in favor of the tenant seems to ex- 
tend as far as this : whatever he has added, and can remove, leav- 
ing the premises entirely restored and in as good order as if he had 
not removed it, that he may take away. Among the things held 
to be removable, in different adjudged cases, are these : ornamental 
chimney-pieces ; coffee-mills ; cornices screwed on ; furnaces ; fire- 
frames; stoves; iron backs to chimneys; looking-glasses; pumps; 
gates.; rails and posts ; barns or stables on blocks. 

Among those held not removable are these : barns fixed in the 
ground; benches fastened to the house; trees, plants, and hedges, 
not belonging to a gardener by trade; conservatory strongly 
affixed ; glass windows ; locks and keys. 

But almost every one of these might be removable, or not, 
according to the intent of the parties, and the rule above stated, 
of removableness. with or without injury. 

If a man sells a house, the law of fixtures is construed far 
more severely against him than against a tenant who leaves a 
house; that is, the seller must permit the buyer to hold a great 
many things which an outgoing tenant might remove. Of course, 
a seller may take what he will from his house before he sells it, 
or make what bargain the parties, choose to make about the fix- 
tures. But if he makes no such bargain, and sells the house, he 



A CITIZEN OF THE UNITED STATES. 383 

cannot then take from the house all that a tenant who put them 
there might take. 

In favor of trade and manufactures, the law permits almost 
any thing which was put in by a tenant for such purpose to be 
taken away, if the premises can be restored substantially to their 
original condition. 

FORMS ANNEXED TO THIS CHAPTER. 

(75.) A short form of a lease. 

(76.) A fuller form, with a provision for abatement of rents. 

(77.) A short form of lease, in use in the Western States. 

(78.) A lease of city property, in use in Chicago. 

(79.) A lease, with provisions for taxes and assessment. 

(80.) A lease, with covenants about water-rate and injury by fire; in 

use in New York. 
(81.) A lease by grant, in use in the Western States. 
(82.) A lease by certificate, with surety. 
(83.) A lease of city property, in use in St. Louis. 
(84.) What is called a country lease, in use in the Western States. 
(85.) A ground lease. 

(86.) An assignment of lease, and ground-rent. . 
(87.) A lease containing chattel mortgage covenants, to secure the rent. 
(88.) A building lease. 
(89.) A mining lease. 

(90.) A lease of land, supposed to contain oil, salt, or other minerals. 
(91.) An assignment of a lease. 

(92.) Landlord's notice to quit for non-payment of rent. Short form. 
(93.) Landlord's notice to quit for non-payment of rent. Another 

form. 
(94.) Landlord's notice to pay rent due, or quit. 
(95.) Landlord's notice to leave at the end of the term. 
(96.) Landlord's notice to determine a tenancy at will. 
(97.) A receipt for rent, in use in New York. 



(75.) 

A SHORT FORM OF A LEASE. 

This indenture, Made this day of in the year 

of our Lord one thousand eight hundred and sixty- 

Witnesseth, That I {name and residence of the lessor), do hereby 
lease, demise, and let unto (name and residence of lessee), a certain parcel 
of land, in the city (or town) of county of and 

State of with all the buildings thereon standing, and the 

appurtenances to the same belonging, bounded and described as follows 
(or, a certain house in said city, giving the street add number, with the land 
under and adjoining the same). 



384 THE PROPERTY RIGHTS OF 

{The premises need not be described quite so minutely or fully as is proper 
in a deed or mortgage of land, but must be so described as to identify them per* 
fectly, and make it certain just zohat premises are leased.) 

To hold for the term of from the day of 

yielding and paying therefor the rent of 

And said lessee does promise to pay the said rent in four quarterly pay- 
ments, on the day of (or state otherwise just when the payments 
of rent are to be made) , and to quit and deliver up the premises to the 
lessor or his attorney, peaceably and quietly, at the end of the term, in as 
good order and condition, reasonable use and wearing thereof, fire and 
other unavoidable casualties excepted, as the same now are or may be put 
into by the said lessor, and to pay the rent as above stated, and all taxes 
and duties levied or to be levied thereon, during the term, and also the 
rent and taxes, as above stated, for such further time as the lessee may 
hold the same; and not make or suffer any waste thereof; nor lease, nor 
underlet, nor permit any other person or persons to occupy or improve the 
same, or make or suffer to be made any alteration therein but with the 
approbation of the lessor thereto, in writing, having been first obtained; 
and that the lessor may enter to view, and make improvements, and to 
expel the lessee, if he shall fail to pay the rent and taxes as aforesaid, or 
make or suffer any strip or waste thereof. 

In witness whereof, The said parties have hereunto interchangeably 
set their hands and seals, the day and year first above written. 

(Signature.) (Seal.) 
(Signature.) (Seal.) 

Signed, sealed, and delivered in presence of 



(76.) 

A FULLER FORM, WITH A PROVISION FOR ABATEMENT OF RENT. 

This indenture, Made this day of in the 

year of our Lord one thousand eight hundred and by and be- 

ween (name and residence of lessor), and (name and residence of lessee). 

Witnesseth, That the said (name of lessor) does hereby lease, demise, 
ant' let unto the said (name of lessee) , (describe the premises, as directed in 
Form 75). 

To hold for the term of commencing the 

day of a.d. one thousand eight hundred and the 

said lessee or those claiming under him yielding and paying rent therefor, 
the sum of f for each and every year, and after the same rate 

for any part of a year. 

And the said lessee, for himself, his heirs, executors, and administra- 
tors, does hereby covenant to and with the said lessor, and his heirs and 
assigns, that he or they will pay the said rent of in equal sums 

of the first of which payments shall be made on the 

day of a.d. one thousand eight hundred and and 

that he or they will pay rent after the same rate for such further time as 
he the said lessee, or those claiming under him, may hold the premises; 
that he or they will, i 'om time to time, upon request by the lessor, or his 



A CITIZEN OF THE UNITED STATES. 385 

heirs or assigns, pay to them such sum or sums of money as shall be equal 
to the amount of the taxes and duties, and water-taxes, that shall be 
levied or assessed on the demised premises for each year and part of a year 
during the term aforesaid, and during such further time as the said lessee 
and those claiming under him may hold the premises; -that he or they will 
not suffer nor commit any strip or waste in the premises; that he or they 
will not assign this lease, nor underlet the whole or any part of the prem- 
ises, to any person or persons; and that no alterations or additions shall be 
made during the term aforesaid, in or to the same, without the consent of 
the said lessor, or of those having his estate in the premises, being first 
obtained in writing, allowing thereof; and also that it shall be lawful for 
the said lessor, and those having his estate in the premises, at seasonable 
times to enter into and upon the same to examine the condition thereof; 
and further, that he the said lessee and his representatives shall and will, 
at the expiration of said term, peaceably yield up unto the said lessor, or 
those having his estate therein, all and singular the premises, and all future 
erections and additions to or upon the same, in as good order and condition, 
in all respects (reasonable wearing and use thereof, and damage by fire 
and other unavoidable casualties excepted), as the same now are, or may 
be put into by the said lessor or those having his estate in the premises. 

Provided always, And these presents are upon this condition, that 
if the said rent shall be in arrear, or the said lessee or his representatives 
or assigns do or shall neglect or fail to perform and observe any or either 
of the above covenants hereinbefore contained, which on his or their part 
are to be performed, then and in either of said cases the said lessor, or 
those having his estate in the said premises, lawfully may, immediately or 
at any time thereafter, and while such neglect or default continues, and 
without further notice or demand, enter into and upon the said premises, 
or any part thereof, in the name of the whole, and repossess the same as 
of his former estate, and expel the said lessee and those claiming under 
him, and remove his or their effects (forcibly if necessary), without being 
taken or deemed guilty of any manner of trespass, and without prejudice 
to any remedies which might otherwise be used for arrears of rent, or pre- 
ceding breach of covenant. 

And provided, also, That in case the premises, or any part thereof, 
shall, during said term, be destroyed or damaged by fire or other unavoid- 
able casualty, so that the same shall be thereby rendered unfit for use and 
habitation, then, and in such case, the rent hereinbefore reserved, or a just 
and proportionate part thereof, according to the nature and extent of the 
injuries sustained, shall be suspended or abated until the said premises 
shall have been put in proper condition for use and habitation by the said 
lessor, or these presents shall thereby be determined and ended at the elec- 
tion of the said lessor or his legal representatives. 

In testimony whereof, The said parties have set their hands and 
seals, on the day and year first above written, to this and to another 
instrument of like tenor and date. 

(Signature.) (Seal.) 
(Signature.) (Seal.) 

Signed, sealed, and delivered in the presence of 

25 



THE PROPERTY RIGHTS OF 



(77.) 

A SHORT FORM OF LEASE, IN USE IN THE WESTERN STATES. 

This indenture, Made this day of 186 

between (name and residence of the lessor) , party of the first part, and 
(name and residence of the lessee), party of the second part, witnesseth, 
that the said party of the first part, in consideration of the covenants of 
the said party of the second part, hereinafter set forth, do by these pres- 
ents lease to the said party of the second part the following-described prop- 
erty, to wit (describe the property, as directed in Form 75) . 

To have and to hold the same to the said party of the second part, 
from the day of 186 to the day of 

186 And the said party of the second part, in consideration 
of the leasing the premises as above set forth, covenants and agrees with 
the party of the first part to pay the said party of the first part, as rent for 
the same, the sum of dollars, payable as follows, to wit (here 

state the times and terms of payment, much as in Form 75) . 

The said party of the second part further covenants with the said party 
of the first part, that at the expiration of the time mentioned in this lease 
peaceable possession of the said premises shall be given to said party of 
the first part, in as good condition as they now are, the usual wear, inevi- 
table accidents, and loss by fire excepted; and that upon the non-payment 
of the whole or any portion of the said rent at the time when the same is 
above promised to be paid, the said party of the first part may, at his elec- 
tion, either distrain for said rent due, or declare this lease at an end, and 
recover possession as if the same was held by forcible detainer: the said 
party of the second part hereby waiving any notice of such election, or any 
demand for the possession of said premises. 

The covenants herein shall extend to and be binding upon the heirs, 
executors, and administrators of the parties to this lease. 

Witness the hands and seals of the parties aforesaid. 

(Signature of lessor.) (Seal.) 
(Signature of lessee.) (Seal.) 



(78.) 

A LEASE OF CITY PROPERTY, IN USE IN CHICAGO. 

This indenture, Made this day of intheyeai 

of our Lord one thousand eight hundred and sixty- between 

(name of the lessor) , of the city of in the county of 

and State of party of the first part, and (name and residence of 

the lessee) , of the second part, 

Witnesseth, That the said party of the first part, for and in considera- 
tion of the covenants and agreements hereinafter mentioned, to be kept 
and performed by the said party of the second part, or his executors, ad- 
ministrators and assigns,, has demised and leased to the said party of the 



A CITIZEN OF THE UNITED STATES. 387 

second part all those premises situate, lying, and being in the city of 
Chicago, in the county of Cook, and State of Illinois, and known and 
described as follows, to wit {here describe the premises, as directed in Forin 
75). 

To have and to hold the said above-described premises, with the 
appurtenances, unto the said party of the second part, and his executors, 
administrators, and assigns, from the day of in the 

year of our Lord one thousand eight hundred and sixty- for and 

during, and until the day of in the year of our 

Lord one thousand eight hundred and the said party of the 

second part paying rent therefor, as hereinafter stated. 

And the said party of the second part, in consideration of the leasing 
the premises aforesaid, by the said party of the first part, to the said party 
of the second part, does covenant and agree with the said party of the first 
part, and his heirs, executors, administrators, and assigns, to pay the said 
party of the first part, at the house {or office or store) of the said party 
of the first part, numbered in Street, Chicago, or at 

the house or office of his assigns, as rent for the said demised premises, 
the sum of {state the whole annual rent), payable as follows {here state the 
times and terms of the payments of rent). 

And it is further agreed by the said party of the second part, in con- 
sideration of the leasing of the premises, that the said party of the second 
part shall and will pay, or cause to be paid, promptly, as soon as the same 
becomes due, all assessments for water-rents that may be levied upon said 
demised premises, during the continuance of this lease, by the Board of 
Water Commissioners of the city of Chicago, and save the said premises 
and the said party of the first part harmless therefrom, and that he will 
keep Said premises in a clean and healthy condition, in accordance with the 
ordinances of the city and the direction of the Sewerage Commissioners. 

And the said party of the second part hereby covenants and agrees, in 
case of delay in payment of any water-rent levied upon said premises dur- 
ing said term, to pay said party of the first part, as liquidated damages 
for such breach of covenant, double the sum of such rent so assessed upon 
said premises as aforesaid. 

And the said party of the second part further covenants with the said 
party of the first part, that at the expiration of the time in this lease 
mentioned, he will yield up the said demised premises to the said party 
of the first part, in as good condition as when the same were entered upon 
by the said party of the second part, loss by fire or inevitable accident and 
ordinary wear excepted. 

It is further agreed by the said party of the second part, that neither 
he nor his legal representatives will underlet said premises, or any part 
thereof, or assign this lease, without the written assent of said party of the 
first part first had and obtained thereto. 

It is expressly understood and agreed, By and between the 
parties aforesaid, that if the rent above reserved, or any part thereof, 
shall be behind or unpaid on the day and at the place of payment whereon 
the same ought to be paid, as aforesaid, or if default shall be made in any 
of the covenants herein contained, to be kept by the said party of the 



388 THE PROPERTY RIGHTS OF 



second part, or his executors, administrators, and assigns, it shall and 
may be lawful for the said party of the first part, or his heirs, executors, 
administrators, agent, attorney, or assigns, at his or their election, to 
declare said term ended, and the said demised premises, or any part 
thereof, either with or without process of law, to re-enter, and the said 
party of the second part, or any other person or persons occupying, in or 
upon the same, to expel, remove, and put out, using such force as may be 
necessary in so doing, and the said premises again to repossess and enjoy 
as in his or their first and former estate ; and it shall be the duty of the said 
party of the second part, his executors, administrators, or assigns, to be 
and appear at the said place above specified for the payment of said rent, 
and then and there tender and pay the same as the same shall fall due from 
time to time, as above, to the said party of the first part, or his agent or 
assigns; or in his or their absence, if the party of the second part or his 
legal representatives shall offer to pay the same then and there, such offer 
shall prevent such forfeiture. 

And it is expressly understood that it shall not be necessary in any 
event for the party of the first part, or his assigns, to go on or near the 
said demised premises to demand said rent, or elsewhere than at the place 
aforesaid. And in the event of any rent being due and unpaid, whether 
before or after such forfeiture declared, to distrain for any rent that may 
be due thereon, upon any property belonging to the said party of the 
second part, whether the same be exempt from execution or distress by 
law or not, and the said party of the second part, in that case, hereby 
waives all legal rights which he may have to hold or retain any such 
property, under any exemption laws now in force in this State, or in any 
other way. Meaning and intending hereby to give to the said party of the 
first part, and his heirs, executors, administrators, and assigns, a valid 
and first lien upon any and all the goods, chattels, or other property 
belonging to the said party of the second part, as security for the payment 
of said rent, in manner aforesaid, any thing hereinbefore contained to the 
contrary notwithstanding. And if at any time said term shall be ended at 
such election of said party of the first part, or his heirs, executors, admin- 
istrators, or assigns, as aforesaid, or in any other way, the said party of 
the second part, for himself and his executors, administrators, and assigns, 
does hereby covenant, promise, and agree to surrender and deliver up said 
above-described premises and property peaceably to the said party of the 
first part, or his heirs, executors, administrators, and assigns, immediately 
upon the determination of said term as aforesaid; and, if he shall remain 
in the possession of the same days after notice of such default, or 

after the termination of this lease, in any of the ways above named, he 
shall be deemed guilty of a forcible detainer of said demised premises 
under the statute, and shall be subject to all the conditions and provisions 
above named, and to eviction and removal, forcibly or otherwise, with or 
without process of law, as above stated; and in order to enforce a for- 
feiture of this lease for non-payment of rent when due, no demand for rent 
when due shall be required, any demand being hereby expressly waived. 

And it is further covenanted and agreed by and between the parties, that 
the party of the second part shall pay and discharge all costs and attorney's 



A CITIZEN OF THE UNITED STATES. 389 

fees and expenses that shall arise from enforcing the covenants of this 
indenture by the party of the first part. 

In testimony whereof, The said parties have hereunto set their 
hands and seals, the day and year first above written. 

{Signature of lessor.) (Seal.') 
{Signature of lessee.) (Seal) 
In presence of 

(79.) 

A LEASE, WITH PROVISIONS FOR TAXES AND ASSESSMENTS. 

This indenture, Made the day of in the year 

one thousand eight hundred and between (name and residence 

of lessor), of the first part, and (name and residence of lessee), of the second 
part, witnesseth, That the said party of the first part, for and in consid- 
eration of the rents, covenants, and agreements hereinafter mentioned, 
reserved, and contained, on the part and behalf of the said party of the 
second part, his executors, administrators, and assigns, to be paid, 

kept, and performed, has granted, demised, and to farm letten, and by 
these presents does grant, demise, and to farm let, unto the said party of 
the second part, and his executors, administrators, and assigns, all (describe 
the premises, as in Form 75). 

To have and to hold the said above mentioned and described prem- 
ises, with the appurtenances, unto the said party of the second part, his 
executors, administrators, and assigns, from the day of 

one thousand eight hundred and for and dur- 

ing and until the full end and term of thence next ensuing: 

and fully to be complete and ended, yielding and paying therefor unto the 
said party of the first part, his heirs or assigns, yearly, and every yeai 
during the said term hereby granted, the yearly rent or sum of 
lawful money of the United States of America, in equal quarter-yearly 
payments, to wit, on the first day of (name the months), in each and every 
of the said years: provided always, nevertheless, that if the yearly rent 
above reserved, or any part thereof, shall be behind or unpaid on any day 
of payment whereon the same ought to be paid as aforesaid; or if default 
shall be made in any of the covenants herein contained, on the part and 
behalf of the said party of the second part, his executors, administrators, 
and assigns, to be paid, kept, and performed, then and from thenceforth 
it shall and may be lawful for the said party of the first part, his heirs .or 
assigns, into and upon the said demised premises, and every part thereof, 
wholly to re-enter and remove all persons therefrom, and the same to have 
again, repossess, and enjoy, as in his or their first and former estate, any 
thing hereinbefore contained to the contrary thereof in any wise notwith- 
standing. And the said party of the second part, for himself 
and his heirs, executors, and administrators, does covenant and agree, «to 
and with the said party of the first part, his heirs and assigns, by these 
presents, that the said party of the second part, his executors, 
administrators, or assigns, shall and will yearly, and every year daring the 



390 THE PROPERTY RIGHTS OF 

said term hereby granted, well and truly pay, or cause to be paid, unto the 
said party of the first part, his heirs or assigns, the said yearly rent above 
reserved, on the days and in manner limited and prescribed as aforesaid 
for the payment thereof, without any deduction, fraud, or delay, accord- 
ing to the true intent and meaning of these presents. And that the said 
party of the second part, his executors, administrators, or assigns, shall 
and will, at their own proper costs and charges, bear, pay, and discharge 
all such taxes, duties, and assessments whatsoever, as shall or may, during 
the said term hereby granted, be charged, assessed, or imposed upon the 
said demised premises. 

And that on the last day of the said term, or other sooner determina- 
tion of the estate hereby granted, the said party of the second part, his 
executors, administrators, or assigns, shall and will peaceably and quietly 
leave, surrender, and yield up unto the said party of the first part, his heirs 
or assigns, all and singular the said demised premises. 

And the said party of the first part, for himself and his heirs, executors, 
and administrators, does covenant and agree to and with the said party of 
the second part, his executors, administrators, and assigns, by 

these presents, that the said party of the second part, execu- 

tors, administrators, or assigns, paying the said yearly rent above reserved, 
and performing the covenants and agreements aforesaid on his and their 
part, the said party of the second part, his executors, administrators, and 
assigns, shall and may at all times. during the said term hereby granted 
peaceably and quietly have, hold, and enjoy the said demised premises, 
without any manner of let, suit, trouble, or hinderance of or from the said 
party of the first part, his heirs or assigns, or any other person or persons 
whomsoever. 

In witness whereof, the said have hereunto set their 

hands and seals, interchangeably, to two copies of this indenture. 

(Signature of lessor.) (Seal.) 



In presence of 

(80.) 



(Signature of lessee.) (Seal.) 



A LEASE, WITH COVENANTS ABOUT WATER-RATE AND INJURY 
BY FIRE, IN USE IN NEW YORK. 

This agreement, Made between (name and residence of 

lessor), party of the first part, and (name and residence of lessee), party of 
the. second part, witnesseth, That the said party of the first part has agreed 
to let, and hereby does let, and the said party of the second part has agreed 
to take, and hereby does take, the following-described premises (here 
describe the premises, as in Form 75), for the term of to com- 

mence and to end to be occupied (describe the 

intended occupation), and not otherwise. And the said party of the second 
pari hereby covenants and agrees to pay unto the said party of the first 
part the annual rent or sum of dollars, payable (state the times 

and terms of the payments) . 

And shall also pay the Croton water-rate, and will keep the plumbing 



A CITIZEN OF THE UNITED STATES. 391 

work, pipes, glass, and the premises generally, in repair, and will surrender 
them at the expiration of the said term in as good state and condition as 
reasonable use and wear thereof will permit. 

And the said party of the second part further covenants that he will not 
assign, let, or underlet the whole or any part of the said premises, nor 
make any alteration therein, without the written consent of the said party 
of the first part, under the penalty of forfeiture and damages; and that he 
will net occupy the said premises, nor permit the same to be occupied, for 
any business deemed extra hazardous, without the like consent, under the 
like penalty. And the said party of the second part further covenants 
that he will permit the said party of the first part, or his agent, to show 
the premises to persons wishing to hire or purchase, and three months 
next preceding the expiration of the term will permit the usual notices of 
" to let" or " for sale " to be placed upon the windows, walls, or doors of 
said premises, and remain thereon without hinderance or molestation. 

And also, that if default be made in any of the covenants herein con- 
tained on the part of the party of the second part, or if the said premises 
or any part thereof shall become vacant during the said term, the said 
party of the first part may re-enter the same, either by force or otherwise, 
without being liable to any prosecution therefor; and re-let the said prem- 
ises or any part thereof in one or more parcels, as the agent of the said 
party of the second part, and receive the rent thereof, applying the same, 
first to the payment of such expense as he may be put to in re-entering, 
and then to the payment of the rent due by these presents; and the balance 
(if any) to be paid over to the said party of the second part; and in case 
of deficiency said party of the second part will pay the same. 

And the said party of the second part hereby further covenants that if 
any default be made in the payment of the said rent or any part thereof, at 
the times above specified, or if default be made in the performance of any 
of the covenants or agreements herein contained, the said hiring, and the 
relation of landlord and tenant, at the option of the said party of the first 
part, shall wholly cease and determine; and the said party of the first part 
shall and may re-enter the said premises, and remove all persons therefrom; 
and the said party of the second part hereby expressly waive the service of 
any notice in writing of intention to re-enter, as provided for in the third 
section of an act entitled "An Act to abolish distress for rent, and for 
other purposes," passed May 13, 1846. 

And it is further agreed between the parties to these presents, that, in 
case the building hereby leased shall be partially damaged by fire, the same 
shall be repaired as speedily as possible by the party of the first part; that, 
in case the damage shall be so extensive as to render the building untenant- 
able, the rent shall cease until the same be repaired, provided the damage 
be not caused by the carelessness or negligence of the party of the second 
part, or his agents or servants. 

If the building be so damaged that the owner shall decide to rebuild, 
the term shall cease, the premises be surrendered, and the accrued rent be 
paid up to the time of the fire. 

In consideration of the letting of the premises above mentioned to the 
above-named (name of the lessee), and of the sum of one dollar to him paid 



392 THE PROPERTY RIGHTS OF 



by the said party of the first part, the said party of the second part does 
hereby covenant and agree to and with the party of the first part above 
named, and his legal representatives, that if default shall at any time be 
made by the said party of the second part, in the payment of the rent and 
performance of the covenants above contained on his part to be paid and 
performed, that he will well and truly pay the said rent or any arrears 
thereof that may remain due unto the said party of the first part, and also 
all damages that may arise in consequence of the non-performance of said 
covenants, or either of them, without requiring notice of any such default 
from the said party of the first part. 

Witness our hands and seals, this day of in 

the year of our Lord one thousand eight hundred and 

(Signature of lessor.) (Seal.) 
(Signature of lessee.) (Seah) 

( Witness.) 

(81.) 
A LEASE BY GRANT, IN USE IN THE WESTERN STATES. 

This indenture, Made and entered into on the day of 

one thousand eight hundred and sixty- by and between 

(name of lessor), of (residence of lessor), party of the first part, and (name 
of lessee), of (residence of lessee), party of the second part, witnesseth, 
That the said party of the first part, in consideration of the rents reserved, 
and the covenants hereinafter contained, does hereby grant, demise, and to 
farm let unto the said party of the second part (describe the premises, as in 
Form 75). 

To have and to hold the same, With all the rights, immunities, 
privileges, and appurtenances thereto belonging, unto the said party of the 
second part, and his executors, administrators, and assigns, for and during 
the full end and term of commencing on the day 

of 186 and ending on the day of 

186 under and subject to the stipulations hereinafter contained, the said 
party of the second part yielding and paying to the said party of the first 
part, for the said premises, the annual rent of payable in equal 

quarterly (or monthly) payments; that is to say on the 

during said term; w T hich rent the said party of the second part, for himself 
and his executors, administrators, and assigns, covenants well and truly to 
pay, at the times aforesaid. 

And the said party of the second part covenants and agrees that if the 
rent aforesaid should at any time remain due and unpaid, the same shall 
bear interest at the rate of per cent per annum from the time it 

so becomes due until paid. And the said party of the second part further 
covenants and agrees that it shall be lawful for the said party of the first 
part, and those having freehold estate in the premises, at reasonable terms, 
to enter into and upon the same, to examine the condition thereof; and 
also that the said party of the second part and his legal representatives 
shall and will, at the expiration of this lease, whether by limitation or for- 
feiture, peaceably yield up to the said party of the first part, or his legal 



A CITIZEN OF THE UNITED STATES. 393 

representatives, the said premises, in the condition received, only excepting 
natural wear and decay, and the effects of fire; and that the said party of 
the second part, for and during all the time that he or any one else in his 
name shall hold over the premises, after the expiration of this lease, in 
either of said ways, shall and will pay to said party of the first part double 
the rent hereinbefore reserved. Also the said party of the second part 
further covenants and agrees that any failure to pay the rent hereinbefore 
reserved when due, and within days after a demand of the same, 

shall produce an absolute forfeiture of this lease, if so determined by said 
party of the first part, or his legal representatives. Also that this lease 
shall not be assigned, nor the said premises, or any part thereof, underlet, 
without the written consent of the said party of the first part, or his legal 
representatives, under penalty of forfeiture. And that all repairs of a tem- 
porary character, deemed necessary by said party of the second part, shall 
be made at his own expense, with the consent of the said party of the first 
part, or his legal representatives, and not otherwise. 

Provided always, And these presents are on this express condition, 
that if the said party of the second part, or his legal representatives, shall 
fail to pay the rent hereinbefore reserved, for the space of days 

after the same shall have become due, or shall fail to perform any of the 
covenants hereinbefore entered into on his and their part, then the said 
party of the first part shall be at liberty to declare this lease forfeited, by 
serving a written notice to that effect on the said party of the second part, 
or his legal representatives, and to re-enter upon and take possession of the 
demised premises, free from any claim of the lessee or any one claiming 
under him. And all estate herein granted shall, upon service of such 
notice, forthwith cease; and said lessor, his heirs, legal representatives, or 
assigns, shall be forthwith entitled to the possession of the demised prem- 
ises, without any further proceeding at law or otherwise to recover posses- 
sion thereof. And the said party of the first part covenants and agrees 
with the said party of the second part, and his legal representatives, that, 
the covenants herein contained being faithfully performed by the said party 
of the second part, he shall peaceably hold and enjoy the said demised 
premises, during the term aforesaid, without hinderance or interruption by 
the said lessor or any other person. 

In witness whereof, The said parties have executed this indenture 
in duplicate, signing their names and affixing their seals to both parts 
thereof, the day and year in this behalf above written. 

(Signature of lessor.*) (Seal.) 



In presence of 



(Signature of lessee.) (Seal.) 



(82.) 

A LEASE BY CERTIFICATE, WITH SURETY. 

This is to certify, That I have let and rented unto (name of lessee), 
(describe the premises, as in Form 75), for the term of from the 

day of 18 at the annual rent of 



394 THE PROPERTY RIGHTS OF 

dollars, payable (state the times of payment). The premises" above men- 
tioned, or any part thereof, shall not be let or underlet without the written 
consent of the landlord, under penalty of forfeiture and damages; nor shall 
the same be used or occupied for any business deemed extra hazardous, on 
account of fire, without the like consent, under the like penalty. 

Given under my hand and seal, the day of 18 

(Signature.) (Seal) 
(Witnesses.) 

This is to certify, That I have hired and taken from (name of lessor), 
(describe the premises in the same way as in the preceding part) , for the term 
of from the day of 18 at the 

rent of dollars, payable And I hereby promise to 

make punctual payment of the rent in manner aforesaid, and to quit and 
surrender the premises, at the expiration of said term, in as good state and 
condition as reasonable use and wear thereof will permit, damages by the 
elements excepted, and engage not to let or underlet the whole or any part 
of the said premises, without the written consent of the landlord, under the 
penalty of forfeiture and damages; and also not to use or occupy the said 
premises for any business deemed extra hazardous, on account of fire, 
without the like consent, under the like penalty. 

Given under my hand and seal, the day of 18 

(Signature.) (Seal.) 
( Witnesses.) 

In consideration of the letting of the premises above-described, and 
for the sum of one dollar, I do hereby become surety for the punctual 
payment of the rent, and performance of the covenants, in the above- 
written agreement mentioned, to be paid and performed by (name of lessee), 
and if any default shall be made therein, I do hereby promise and agree 
to pay unto (name of lessor) such sum or sums of money as will be suffi- 
cient to make up such deficiency, and fully satisfy the conditions of the 
said agreement, without requiring any notice of non-payment, or proof of 
demand being made. 

Given under my hand and seal, the day of 18 



(Witnesses.) 



(Signature.) (Seal.) 



(83.) 

A LEASE OF CITY PROPERTY, IN USE IN ST. LOUIS. 

This indenture, Made the day of in the year 

of our Lord eighteen hundred and sixty- between (name and 

residence of the lessor), of the first part, and (name and residence of lessee), 
of the second part, witnesseth, That the said party of the first part, in 
consideration of the rents, covenants, and stipulations hereinafter men- 
tioned, and hereby agreed to be paid, kept, and performed by the said party 
of the second part, his executors, adniinistrators, and assigns, hath leased, 



A CITIZEN OF THE UNITED STATES. 395 

and by these presents doth lease, to the said party of the second part, the 
following-described premises {here describe the house, as of brick or stone, 
number of stories, and number in the block) , in block No. in the 

city of St. Louis, to commence on the day of 

186 for and during the term of at the annual 

rent of payable in fo.ur equal quarterly payments, beginning 

three months from the date hereof. Any failure to pay each payment of 
rent when due, to produce a forfeiture of this lease, if so determined by 
said lessor or his successors. The lease of said tenement or any part of 
it is not assignable, nor is said tenement or any part of it to be underlet, 
without the written consent of said lessor, under penalty of forfeiture. 
And it is hereby covenanted, that, at the expiration of this lease, the said 
tenement and premises are to be surrendered to said lessor, his heirs, 
assigns, or successors, in the condition received, only excepting its natural 
wear and decay, or the effects of accidental fire. All repairs deemed 
necessary by said lessee to be made at his expense. All fixtures shall be 
bound for the rent. 

The said lessee, and all holding under him, hereby engaging to pay the 
rent above reserved, and double rent for every day when he or any one 
else in his jiame shall hold on to the whole or any part of said tenement, 
after the expiration of this lease, or of its forfeiture for non-payment of 
rent, &c. This tenement and premises to be kept free of any nuisance in 
or adjacent thereto, at the expense of the said lessee. 

(Signature of lessor.) (Seal.) 
(Signature of lessee.) (Seal.) 

(Witness.) 

(84.) 

WHAT IS CALLED A COUNTRY LEASE, IN USE IN THE WESTERN 

STATES. 

This indenture, Made this day of in the year 

of our Lord one thousand eight hundred and between (name of 

lessor) of the of in the county of and State 

of party of the first part, and (name and residence of lessee), 

party of the second part, witnesseth, That the said party of the first part, 
for and in consideration of the covenants and agreements hereinafter men- 
tioned, to be kept and performed by the said party of the second part, his 
executors, administrators, and assigns, has demised and leased to the said 
party of the second part all those premises situate, lying, and being in the 
township of county of State of known 

and described as follows, to wit (describe the premises in such way as to 
identify them perfectly by situation, metes, and bounds, or otherwise) . 

To have and to hold the said above-described premises, with the 
appurtenances, unto the said party of the second part, and his executors, 
administrators, and assigns, from the day of in 

the year of our Lord one thousand eight hundred and for and 

during, and until the day of in the year of our 

Lord one thousand eight hundred and paying rent therefor aa 

hereafter stated. 



S96 THE PROPERTY RIGHTS OF 

And the said party of the second part, in consideration of the leasing 
of the premises aforesaid, by the said party of the first part to the said 
party of the second part, does covenant and agree with the said party of 
the first part, and his heirs, executors, administrators, and assigns, to pay 
the said party of the first part, as rent for the said demised premises, the 
sum of dollars, annual rent, payable quarterly, in four equal 

quarterly payments, the first payment to be due and made in three months 
from the date of this lease, payable at the {here state the place where the rent 
should be paid). 

And the said party of the second part further covenants with the said 
party of the first part, that at the expiration of the time in this lease 
mentioned he will yield up the said demised premises to the said party of 
the first part, in as good condition as when the same were entered upon by 
the said party of the second part, loss by fire or inevitable accident and 
ordinary wear excepted. 

It is further agreed by the said party of the second part, that neither 
he nor his legal representatives will underlet said premises, or any part 
thereof, or assign this lease, without the written assent of said party of 
the first part, first had and obtained thereto. 

It is expressly understood and agreed by and between the pat- 
ties aforesaid, that if the rent above reserved, or any part thereof, shall 
be behind or unpaid, on the day and at the place of payment, whereon the 
same ought to be paid, as aforesaid, or if default shall be made in any of 
the covenants herein contained, to be kept by the said party of the second 
part, his executors, administrators, and assigns, it shall and may be lawful 
for the said party of the first part, his heirs, executors, administrators, 
agent, attorney, or assigns, at his or their election, to declare said term 
ended, and the said demised premises, or any part thereof, either with or 
without process of law, to re-enter, and the said party of the second part, 
or any other person or persons occupying, in or upon the same, to expel, 
remove, and put out, using such force as may be necessary in so doing, 
and the said premises again to repossess and enjoy, as in his or their first 
and former estate ; and it shall be the duty of the said party of the second 
part, his executors, admiuistrators, or assigns, to be and appear at the said 
place above specified, for the payment of said rent, and then and there 
tender and pay the same as the same shall fall due from time to time, as 
above, to the said party of the first part, or his agent or assigns ; or in 
his or their absence, if the said party of the second part shall offer to pay 
the same then and there, such offer shall prevent said forfeiture. 

And it is expressly understood that it shall not be necessary in any 
event for the party of the first part or his assigns to go on or near the 
said demised premises to demand said rent, or elsewhere than at the place 
aforesaid. And in the event of any rent being due and unpaid, whether 
before or after such forfeiture declared, to distrain for any rent that may 
be due thereon, upon any property belonging to the said party of the 
second part, whether the same be exempt from execution or distress by 
law or not, and the said party of the second part, in that case, hereby 
waives all legal rights which he now has or may have, to hold or retain 
any such property, under any exemption laws now in force in this State, 



A CITIZEN OF THE UNITED STATES. ' 397 

or in any other way. Meaning and intending hereby to give to the said 
party of the first part, and his heirs, executors, administrators, and as- 
signs, a valid and first lien upon any and all the goods, chattels, or other 
property belonging to the said party of the second part, as security for the 
payment of said rent in manner aforesaid, any thing hereinbefore con- 
tained to the contrary notwithstanding. And if at any time said term 
shall be ended at such election of said party of the first part, or his heirs, 
executors, administrators, or assigns, as aforesaid, or in any other way, 
the said party of the second part, for himself and his executors, adminis- 
trators, and assigns, does hereby covenant, promise, and agree to surrender 
and deliver up said above-described premises and property peaceably to 
said party of the first part, or his heirs, executors, administrators, and 
assigns, immediately upon the determination of said term as aforesaid; 
and if he shall remain in the possession of the same days after 

notice of such default, or after the termination of this lease, in any of 
the ways above named, he shall be deemed guilty of a forcible detainer 
of said demised premises, and shall be subject to all the conditions and 
provisions above-named, and to eviction and removal, forcibly or other- 
wise, with or without process of law, as above stated. 

And it is further covenanted and agreed by and between the parties, 
that the party of the second part shall pay and discharge all costs and 
attorney's fees and expenses that shall arise from enforcing the covenants 
of this indenture by the party of the first part. 

In testimony whereof, The said parties have hereunto set their 
hands and seals, the day and year first above written. 

(Signature of lessor.) (Seal.) 
(Signature of lessee.) (Seal.) 

In presence of 



(85.) 
A GROUND LEASE. 

This indenture, Made this day of in the year 

of our Lord one thousand eight hundred and sixty- between 

(name and residence of lessor), party of the first part, and (name and resi- 
dence of lessee), party of the second part, witnesseth, That the said party 
of the first part, for and in consideration of the covenants and agree- 
ments hereinafter mentioned, to be kept and performed by the party of 
the second part, hath demised and leased to the party of the second part 
all those premises situate in the of in the county of 

and State of known and described as follows, to 

wit (here give such description of the premises as shall identify them, and dis- 
tinguish them from any other). 

To have and to hold the above-described premises, with the ap- 
purtenances, unto the party of the second part, from the day 
of in the year of our Lord one thousand eight hundred and 
for and during and until the And the party of 
the second part, in consideration of the leasing of the premises aforesaid. 



398 THE PROPERTY RIGHTS OF 

does covenant and agree with the party of the first part to pay to the party 
of the first part, as rent for said demised premises, at the office of 
in the sum of (state the sum to be paid as annual 

rent), in four equal quarterly payments, each of them the sum of 
dollars, to be paid on the first (or other) day of the months of (the four 
months in which the rent is payable) , in each year (or describe otherwise the 
terms and times of the payments as they may have been agreed upon)] and 
also that the said party of the second part will pay, or cause to be paid, 
all water-rates, and all taxes and assessments that may be laid, charged, 
or assessed on said demised premises, pending the existence of this lease; 
or if at any time after any tax, assessment, or water-rate shall have 
become due or payable, the party of the second part, or his legal repre- 
sentatives, shall neglect to pay such water-rates, tax, or assessment, it may 
be lawful for the party of the first part to pay the same at any time there- 
after, and the amount of any and all such payments so made by the party 
of the first part shall be deemed and taken, and are hereby declared to be, 
so much additional and further rent, for the above-demised premises, due 
from and payable by the party of the second part; and may be collected 
in the same manner, by distress or otherwise, as is hereinafter provided 
for the collection of other rents to grow due thereon. 

And it is expressly understood and agreed by the said party of the 
second part hereto, for himself and his heirs, executors, administrators, 
and assigns, that the whole amount of rent reserved and agreed to be 
paid for said above-demised premises, and each and every instalment 
thereof, shall be and is hereby declared to be a valid and first lien upon 
any and all buildings and improvements on said premises, or that may 
at anytime be erected, placed, or put on said premises by said party of 
the second part, or his heirs, executors, administrators, or assigns, and 
upon his or their interest, in this lease, and the premises hereby demised; 
and that whenever and as often as any instalment of rent or any other 
amount above declared to be deemed and taken as rent shall become due 
and remain unpaid for one day after the same becomes due and payable, 
said party of the first part, his heirs, executors, administrators, agent, 
attorney, or assigns, may sell at public auction to the highest bidder, for 
cash, after having first given ten days' notice of the time and place of such 
sale in some newspaper published in all the buildings and im- 

provements on said premises, and all the right, title, and interest acquired 
by said party of the secpnd part, under this lease, to the premises herein 
described, and as the attorney of said party of the second part — hereby 
irrevocably constituted — may make to the purchaser or purchasers thereof 
a suitable and proper transfer bill of sale or deed of the same, and out 
of the proceeds arising from such sale, after first paying all costs and 
expenses of such sale, including commissions and attorney's fees, retain 
to himself the whole amount due on said lease, up to the date of said sale, 
rendering the surplus (if any) to said party of the second part, his heirs, 
executors, administrators, agent, attorney, or assigns, which sale shall be 
a perpetual bar to and against all rights and equities of said party of the 
second part, his heirs and assigns, in and to the property sold. 



A CITIZEN OF THE UNITED STATES. 399 

And the party of the second part further covenants with the party of 
the first part, that, at the expiration of the time in this lease mentioned, 
he will yield up said demised premises to the party of the first part, in as 
good condition as when the same were entered upon by the party of the 
second part, loss by fire or inevitable accident and ordinary wear ex- 
cepted. 

It is further agreed by the party of the second part, that neither he nor 
his legal representatives will underlet said premises, or any part thereof, or 
assign this lease, without the written assent of said party of the first part, 
first had and obtained thereunto, nor use or suffer them to be used for any 
purpose calculated to injure the reputation of the premises, or of the neigh- 
borhood, or to impair the value of the surrounding neighborhood property, 
for present use or otherwise. 

It is expressly understood and agreed, By and between the 
parties aforesaid, that if the rent above reserved, or any part thereof, 
shall be behind or unpaid, on the day of payment, whereon the same 
ought to be paid, as aforesaid, or if default shall be made in any of the 
covenants herein contained to be kept by the party of the second part, his 
executors, administrators, or assigns, it shall and may be lawful for the 
party of the first part, or his heirs, executors, administrators, agent, 
attorney, or assigns, at his or their election, to declare said term ended, 
and into the said demised premises, or any part thereof, either with or with- 
out process of law, to re-enter, and the party of the second part, or any 
other person or persons occupying in or upon the same, to expel, remove, 
and put out, using such force as may be necessary in so doing, and the 
said premises again to repossess and enjoy, as of his or their first and 
former estate ; and to distrain for any rent that may be due thereon , upon 
any property belonging to the party of the second part, whether the same 
be exempt from execution and distress by law or not; and the party of the 
second part, in that case, hereby waives all legal rights which he now has, 
or may have, to hold or retain any such property under any exemption 
laws now in force in this State, or in any other way; meaning and intend- 
ing hereby to give the party of the first part, his heirs, executors, adminis- 
trators, agent, attorney, or assigns, a valid and first lien upon any and all 
the goods, chattels, or other property belonging to the party of the second 
part, as security for the payment of said rent, in manner aforesaid, any 
thing hereinbefore contained to the contrary notwithstanding. And if at 
any time said term shall be ended at such election of said party of the first 
part, or his heirs, executors, administrators, agent, attorney, or assigns, 
as aforesaid, or in any other way, the party of the second part does hereby 
covenant and agree to surrender and deliver up said above-described prem- 
ises and property, peaceably, to the party of the first part, or his heirs, 
executors, administrators, agent, attorney, or assigns, immediately upon 
the determination of said term, as aforesaid; and if the said party of the 
second part or his legal representatives shall remain in possession of the 
same one day after notice of such default, or after the termination of this 
lease, in any of the ways above named, he or they shall be deemed guilty 
of a forcible detainer of the premises, and shall be subject to all the condi- 



400 THE PROPERTY RIGHTS OF 

tions and provisions above named, and to eviction and removal, forcibly or 
otherwise, with or without process of law, as above stated. 

And it is further understood and agreed by the said party of the second 
part, that neither the right given in this lease, to said party of the first 
part, to collect the rent that may be due under the terms of this lease by 
sale, or any proceedings under the same, shall in any way affect the right 
of said party of the first part to declare this lease void and the term hereby 
created ended, as above provided upon default made by said party of the 
second part. 

And the said party of the first part hereby waives his right to any 
notice from said party of the second part, of his election to declare this 
lease at an end, under any of its provisions, or any demand for the pay- 
ment of rent, or the possession of premises leased herein, but the simple 
fact of the non-payment of the rent reserved shall constitute a forcible 
entry and detainer as aforesaid. 

The said party of the second part further agrees not to remove any 
buildings or other improvements from said premises . without written con- 
sent of said party of the first part, and that the said second party shall pay 
and discharge all costs and attorney's fees and expenses that shall arise 
from enforcing the covenants of this indenture, by the party of the first 
part. 

It is further understood and agreed, That all the conditions and cove- 
nants contained in this lease shall be binding upon the heirs, executors, 
administrators, and assigns of the parties to these presents respectively. 

In testimony whereof, The said parties have hereunto set their 
hands and seals, the day and year first above written. 

(Signature of lessor.) (Seal.) 
(Signature of lessee.) (Seal.) 

Signed, sealed, and delivered in presence of 



(86.) 

AN ASSIGNMENT OF LEASE, AND GROUND-RENT. 

This indenture, Made the day of in the year 

of our Lord one thousand eight hundred and between (name 

and residence of the assignor) , party of the first part, and (name and resi- 
dence of the assignee), party of the second part, witnesseth, That the said 
party of the first part, for and in consideration of the sum of 
dollars, lawful money of the United States of America, unto him in hand 
well and truly paid by the said party of the second part, at the time of the 
execution hereof, the receipt whereof is hereby acknowledged, by these 
presents does grant, bargain, sell, assign, release, and confirm unto the 
said party of the second part a certain indenture, made and executed on 
the day of in the year of our Lord eighteen hun- 

dred and whereby the said party of the first part leased to 

one (name of the lessee in the lease here assigned) certain premises therein 



A CITIZEN OF THE UNITED STATES. 401 

described as follows (here copy the description of the premises in that lease), 
reserving a certain rent, payable to said party of the first part; that is to 
say (here state the rent reserved in that lease), payable (here state the times 
and terms of payment) , together with the said rent, to the said party of the 
first' part, payable as aforesaid. 

Together with all right and power of entry and distress and of re- 
entry, and all other the covenants, ways, means, and remedies for the 
recovery thereof, and all and singular the rights, incidents, and appurte- 
nances whatsoever thereunto belonging, and the reversions and remainders 
thereof, and all the estate, right, title, interest, property, claim, and 
demand whatsoever, of him the said party of the first part, or his legal 
representatives, either in law or equity, as well of, in, and to the said 
yearly rent or sum hereby granted and assigned, as also of, in, and to 
the said lot or piece of ground, with the appurtenances, for and out of 
which the same rent is issuing and payable. To have and to hold, receive 
and take, all and singular the hereditaments and premises hereby granted 
and assigned, with the rights, remedies, incidents, and appurtenances, unto 
the said party of the second part, his heirs and assigns, to and for the only 
proper use and behoof of him the said party of the second part, his heirs 
and assigns, for ever. And the said party of the first part, and his heirs, 
all and singular the hereditaments and premises hereby granted and 
assigned, with the rights, remedies, incidents, and appurtenances, unto the 
said party of the second part, and his heirs and assigns, against him the said 
party of the first part and his heirs, and against all and every other person 
and persons whomsoever, lawfully claiming or to claim by, from, or under 
him or them, or any of them, shall and will warrant and for ever defend, by 
these presents. 

In witness whereof, The said parties to these presents have hereunto 
interchangeably set their hands and seals, the day and year hereinbefore 
first written. 

(Signature of the assignor.) (Seal.) 
(Signature of the assignee.) (Seal.) 

Sealed and delivered in the presence of us, 
( Witnesses.) 



Received the day of the date of the above indenture of the above- 
named the sum of being the full consideration 
money above mentioned. 

(Signature of the assignor.) 

(Witness.) 

On the day of a.d. 18 before me, 

personally appeared the above-named (name of the assignor), and in due 
form of 1 iw acknowledged the above indenture to be his free act and deed, 
and desired the same might be recorded as such. 

Witness my hand and seal, the day and year aforesaid. 

(Signature.) (Seal.) 



402 THE PROPERTY RIGHTS OF 



(87.) 

A LEASE CONTAINING CHATTEL MORTGAGE COVENANTS, TO SECURE 

THE RENT. 

This indenture, Made this day of in the year of 

our Lord one thousand eight hundred and between (name and 

residence of lessor), of the first part, and (name and residence of the lessee), 
of the second part, witnesseth, That the said party of the first part, for 
and in consideration of the covenants and agreements hereinafter men- 
tioned, to be kept and performed by the said party of the second part, his 
executors, administrators, and assigns, has demised and leased to the said 
party of the second part all those premises situate, lying, and being in the 
city of in the county of and in the State of 

known and described as follows, to wit (here describe the premises, as in 
Form 75) . 

To have and to hold the said above-described premises, with the 
appurtenances, unto the said party of the second part, his executors, admin- 
istrators, and assigns, from the day of in the year 
of our Lord one thousand eight hundred and for and during 
and until the day of in the year of our Lord one 
thousand eight hundred and And the said party of the second 
part, in consideration of the leasing of the premises aforesaid by the said 
party of the first part to the said party of the second part, does covenant 
and agree with the said party of the first part, his heirs, executors, admin- 
istrators, and assigns, to pay the said party of the first part, as rent for 
said demised premises, the sum of dollars, in four equal quarterly 
payments of dollars each ($ ), payable (here state the 
days when the rent should be paid), at the house (or office, or counting-room, 
or store) of said party of the first part, in said city of 

And it is further agreed by the said party of the second part, in con- 
sideration of the leasing of the premises aforesaid, that the said party of 
the second part shall and will pay, or cause to be paid, promptly, as soon 
as the same becomes due, all assessments for water-rents that may be 
levied upon said demised premises during the continuance of this lease, and 
save said premises and the party of the first part harmless from all charges 
and expenses connected with the supply of water to said premises. And 
the said party of the second part hereby covenants and agrees, in case of 
default in the payment of any water-rent levied upon said premises during 
said term, to pay unto said party of the first part, as liquidated damages 
for such breach of covenant, double the sum of such rent so assessed upon 
said premises as aforesaid. 

And the said party of the second part further covenants with the said 
party of the first part, that he will keep said premises in a clean and healthy 
condition, in accordance with the ordinances of the city and directions of 
the proper authorities. 

It is further agreed by the said party of the second part, that neither he 
nor his legal representatives will underlet said premises or any part thereof. 



A CITIZEN OF THE UNITED STATES. 403 

or assign this lease, -without the written assent of the said party of the 
first part first had and obtained thereto. 

This indenture further witnesseth, That the said party of the 
second part, for and in consideration of the sum of (insert the whole sum to 
be paid under the lease) dollars in hand paid, the receipt whereof is hereby 
acknowledged, does hereby grant, sell, convey, and confirm unto the said 
party of the first part, his heirs and assigns, all and singular the following- 
described goods and chattels, to wit (here give a schedule or list of the articles, 
describing them sufficiently) . 

Together with all and singular the appurtenances thereunto belonging, 
or in any wise appertaining: to have and to hold the same unto the said 
party of the first part, his heirs, executors, administrators, and assigns, to 
his and their sole use for ever. And the said party of the second part, for 
himself and for his heirs, executors, and administrators, does covenant and 
agree with the said party of the first part, and his heirs, executors, admin- 
istrators, and assigns, that he is lawfully possessed of the said goods and 
chattels as of his own property; that the same are free from all incum- 
brances, and that he will, and his heirs, executors, and administrators 
shall, warrant and defend the same unto the said party of the first part, 
and his heirs, executors, administrators, and assigns, against the lawful 
claims and demands of all persons. 

Provided, nevertheless, That if the said party of the second part, 
or his heirs, executors, administrators, or assigns, shall well and truly pay, 
or cause to be paid, unto the said party of the first part, or his heirs, 
executors, administrators, or assigns, the said sum of dollars, 

rent, above reserved, punctually, and in the manner and at the times and 
place above mentioned, then and from thenceforth these presents, and 
every thing herein contained, shall cease, and be null and void. 

And provided, also, That it shall be lawful for the said party of the 
second part, his heirs, executors, and administrators, to retain possession 
of the said granted goods and chattels, and at his own expense to keep and 
to use and enjoy the same, until the said party of the second part, or his 
heirs, executors, administrators, or assigns, shall make default in the pay- 
ment of said rent above specified, at the time or times, and in the manner 
hereinbefore contained; or unless the said party of the first part shall fear 
diminution, removal, or waste, for want of proper care; or if the said party 
of the second part shall sell or assign, or attempt to sell or assign, said 
goods and chattels, or any part thereof; or if any writ issued from any 
court shall be levied on any part of the above-described goods and chattels, 
— that then, and in any of the aforesaid cases, all of said sum of 
dollars, above reserved as rent for said demised premises, shall become due 
and payable ; and the said party of the first part, his heirs, executors, 
administrators, and assigns, agents, or attorneys, or any of them, may 
elect to take possession of the said property, and for that purpose may 
pursue the same or any part thereof, wherever it may be found, and also 
may enter any of the premises of the said party of the second part, with or 
without force or process of law, wherever the said goods and chattels may 
be or be supposed to be, and search for the same, and, if found, to take 
possession of and remove, and sell and dispose, of said property, or so 



404 THE PROPERTY RIGHTS OF 

much thereof as may be necessary to pay the rent due, and the balance of 
rent for the whole unexpired term, whether due or not due, at public 
auction, to the highest bidder, after giving ten days' notice of the time, 
place, and terms of sale, together with a description of the property to be 
sold, either by publication in some newspaper in the city of or 

by similar notices posted up in three public places in the vicinity of such 
sale, or at private sale, with or without notice, for cash or on credit, as the 
said party of the first part, or his heirs, executors, administrators, or 
assigns, agents or attorneys, or any of them, may elect; and out of the 
money arising from such sale, to retain, first, all costs and charges for 
pursuing, searching, taking, removing, keeping, storing, advertising, and 
selling of such property, goods, chattels, and effects, and all prior liens, 
together with the rent due and the balance of rent for the whole unexpired 
term, whether due or not due, rendering the overplus of the money arising 
from such sale, and the remainder of said goods and chattels, if any there 
shall be, unto the said party of the second part, or his legal represent- 
atives. 

It is expressly understood and agreed, by and between the 
parties aforesaid, that if the rent above covenanted to be paid, or any part 
thereof, shall be behind or unpaid on the day of payment whereon the 
same ought to be paid as aforesaid, or if default shall be made in any of 
the covenants herein contained, to be kept by the said party of the second 
part, his executors, administrators, and assigns, it shall and may be lawful 
for the said party of the first part, his heirs, executors, administrators, 
agent, attorney, or assigns, at his or their election, to declare said term 
ended, and into the said demised premises, or any part thereof, either with 
or without process of law, to re-enter; and that said party of the second 
part, or any other person or persons occupying in or upon the same, to 
expel, remove, and put out, using such force as may be necessary in so 
doing, and the said premises again to repossess and enjoy, as in his or their 
first and former estate, and to distrain for any rent that may be due 
thereon, upon any property belonging to the said party of the second part, 
whether the same be exempt from execution or distress by law or not; and 
the said party of the second part, in that case, hereby agrees to waive all 
legal right which he may have to hold or retain any such property, under 
any exemption law now in force in this State, or in any other way. And 
if at any time said term shall be ended at such election of said party of the 
first part, or his heirs, executors, administrators, or assigns, as aforesaid, 
or in any other way, the said party of the second part, or his executors, 
administrators, or assigns, does hereby covenant and agree to surrender 
and deliver up said above-described premises and property peaceably to said 
party of the first part, or his heirs, executors, administrators, and assigns, 
immediately upon the determination of said term as aforesaid; and if he 
shall remain in possession of the same after such default, or after the ter- 
mination of this lease in any of the ways above named, he shall be deemed 
guilty of a forcible detainer of said demised premises, and shall be subject 
to all the conditions and provisions above named, and to eviction and 
removal, forcibly or otherwise, with or without process of law, as above 
stated. 



A CITIZEN OF THE UNITED STATES. 405 

In testimony -whereof, The said parties have hereunto set their 
hands and seals, the day and year first above written. 

(Signature of lessor.) (Seal.) 
(Signature of lessee.) (Seal.) 

In presence of 

State of 1 

>ss. 
County of ) 

I, justice of the peace in and for said county, do hereby 

certify that this lease and mortgage was duly acknowledged before me by 
the above-named (name of lessee), this day of a.d. 18 

(Seal) 

(88.) 
A BUILDING LEASE. 

This deed of lease, Made and entered into in duplicate this 
day of a.d. 186 between (name of lessor), of 

county of and State of party of the first part, and 

(name of lessee), of county of and State of 

party of the second part: 

Witnesseth, That the said party of the first part, in consideration of 
the covenants, agreements, and stipulations hereinafter mentioned, as well 
as the yearly rent of dollars, to be paid to him in four equal 

quarterly payments in each year (the first payment to be made on the 
day of a.d. 186 ), doth by these presents lease 

to the said party of the second part, for the term of years, which 

said term begins on the day of 186 the following- 

described lot of land, to wit (here describe the premises, as in Form 75). 

The said party of the second part, for himself and his heirs, hereby 
covenants with said lessor and his heirs to pay said rent as aforesaid, and 
also to pay all city, county, and State taxes, and all other taxes and 
demands of every description, nature, or kind whatever, which may from 
time to time be legally required or demanded of said premises, whether 
general tax or special tax. 

Every failure, first, to pay the said rent, or any part thereof, when it 
is respectively made payable; or, second, to pay the said city, county, and 
State taxes, and all other taxes and demands, or any part thereof (legally 
required or demanded of said premises, within the year the same shall 
become due, assessed to either said lessor, his heirs or representatives, or 
to said lessee or his representatives) ; or, third, to keep and perform any of 
the other covenants, agreements, or stipulations herein mentioned, — shall 
make and create a forfeiture of this lease, and a termination of the term 
for which the above premises were let; and all the estate hereby conveyed 
shall be absolutely void, if so determined, at any day or time, however dis- 
tant, after such failure, by notice in writing to that effect, given by said 
lessor, his heirs or assigns, to said lessee or his assigns; which said notica 



406 THE PROPERTY RIGHTS OF 

may be served by posting a copy or duplicate of the same up at one of the 
most public places on said premises, or by delivering a copy or duplicate of 
such notice to said lessee or his assigns. 

This lease of said premises, or any part thereof, is not to be assigned, 
under penalty of forfeiture, without the written consent of said lessor, his 
heirs or assigns. At the expiration of this lease, the said premises to be 
delivered to said lessor, his heirs or assigns. The said lessee, and all 
who hold under him, hereby engage to pay double rent for every day they 
or any one else in their name shall hold on to the whole or any part 
of said premises after the expiration of this lease, or after forfeiture 
thereof. 

The said lessee is, under penalty of forfeiture, bound to keep said 
premises free from any disorderly, bawdy, or gambling establishments, 
dram-shops, tippling-shops, beer-houses, or any nuisances whatsoever. 
And in case of any forfeiture of this lease, the said lessor, his heirs and 
assigns, may forthwith take possession of said premises, with all the 
improvements thereon, and shall be entitled to the same, any custom, 
usage, or law to the contrary notwithstanding. 

All improvements erected on said premises by said lessee or his assigns, 
or by any one who may claim under them, are bound for the payment of 
each quarterly instalment of rent, and for the city, county, and State 
taxes, and all other taxes and demands as aforesaid, and for any arrears 
of rent or taxes; arid in case of the punctual payment of the rent and 
taxes, as herein specified, the said lessee or his assigns is hereby author- 
ized to remove all such improvements (and no others), at the expiration 
of this lease, which he or any one who may claim under him may have 
erected on said premises during said term. 

In testimony whereof, The parties hereto have hereunto set their 
hands and seals to duplicate leases, the day and year aforesaid. 

{Signature of lessor.) (Seal.) 
(Signature of lessee.) (Seal.) 

In presence of 



(89.) 
A MINING LEASE, 

This indenture, Made this day of in the year 

of our Lord one thousand eight hundred and between (name 

and residence of the lessor), of the first part, and (name and residence of the 
lessee), of the second part, witnesseth, That the said party of the first part, 
for and in consideration of the covenants and agreements hereinafter con- 
tained on the part of the said party of the second part, and of one dollar 
in hand paid to the said party of the first part, the receipt whereof is 
hereby acknowledged, has granted and conveyed, and by these presents 
does grant and convey, to the said party of the second part, his heirs, exec- 
utors, administrators, and assigns, the right of entering in and upon the 
lands hereinafter described, for the purpose of searching for mineral and 
fossil substances, and of conducting mining and quarrying operations, to 



A CITIZEN Of IRE UNITED STATES. 407 

any extent he or they may deem advisable (but not to hold possession of 
any part of said lands for any other purpose whatsoever) , paying for the 
site of buildings of any kind necessary thereto a reasonable rent. 

The said lands are situated (here state the situation of the premises leased, 
and describe them by metes and bounds, dimensions, and references to other 
boundaries, so as to distinguish them perfectly) . 

And the said party of the second part hereby agrees that he or his 
heirs, executors, administrators, or assigns will pay or cause to be paid to 
the said party of the first part, his heirs or assigns, an annual rent of the 
amount of dollars, in four equal quarterly payments, payable 

severally on the following days (Jiere state the days when the payments are to 
be made, or whatever other terms or times are agreed upon), and also cove- 
nants that no damage shall be done to or upon said lands and premises, 
other than may be necessary in conducting said operations. And it is 
agreed and covenanted by and between the parties hereunto, that this lease 
shall be and remain in full force and effect (subject to the proviso herein- 
after stated) years, from the date hereof, and no longer. But 
the said parties of the first and the second part, each for themselves, their 
heirs, executors, administrators, and assigns, covenant and agree, and this 
indenture is made with this express proviso, that if no mineral or fossil 
substance be mined or quarried, as now contemplated by said parties, 
within the period of years, from the present time, then these 
presents, and everything contained herein, shall cease and be for ever null 
and void. 

In testimony whereof, The parties to these presents have hereunto 
set their hands and seals, the day and year first above written. 

(Signature of lessor.) (Seal.) 
(Signature of lessee.) (Seal.) 

Signed, sealed, and delivered in presence of 



(90.) 

A LEASE OF LAND SUPPOSED TO CONTAIN OIL, SALT, OR OTHER 

MINERALS. 

Articles of agreement. Made and concluded this day 

of a.d. 186 between (name of lessor), of the township of 

county of and State of party of the 

first part, and (name and residence of lessee), party of the second part. 
Witnesseth, That the said party of the first part, for himself and his heirs, 
executors, administrators, and assigns, for and in consideration of the sum 
of one dollar, the receipt of which is hereby acknowledged, and for the 
further consideration hereinafter mentioned, and on account of covenants 
hereinafter contained, hereby leases to the said party of the second part, 
his heirs, executors, administrators, and assigns, the following-described 
piece or parcel of land, situated in the township of county of 

and State of bounded and described as follows 

(describe the premises, as in the preceding Form). The said land more 



408 THE PROPERTY RIGHTS OF 

fully described in deed of conveyance by (name of the grantor to the lessor) 
to the said party of the first part, containing acres, more or 

less, for the purpose of boring, mining, and operating for oil, salt, and 
other minerals on said land, for the term of years. 

Said second parties to have the exclusive right to mine for oil, salt, and 
other minerals, on said land, during the continuance of said term; to have 
the privilege of taking sufficient coal and wood for conducting said boring 
and mining operations, and timber for derricks and mill-frames and for 
refineries, and the right to erect all necessary buildings upon said premises 
for carrying on the business of boring for oil, and mining, refining, and 
storing away oil and other minerals; and to have the necessary roads to 
and from any well or wells that may be bored, or any mines; and to have 
possession whenever they shall be ready to commence operations. And in 
case successful in obtaining oil or other minerals, agree to deliver to the 
said party of the first part {here state the part or proportion which is to he 
given to the lessor) of all oil, salt, or other minerals obtained. Said party 
of the first part to find his own barrels, and remove the oil and other 
minerals belonging to him, as often as required by the second parties. 
And in case said second parties should not be successful in obtaining oil 
or other minerals, they shall have the right to remove all engines, tools, 
machinery, and buildings. And further, it is agreed that said second par- 
ties have the right to sub-lease said land for the purpose of boring for 
oil or other minerals; the said lessee or lessees being granted all the rights 
and privileges herein granted to the said party of the second part. 

Witness our hands and seals, this day of 186 

(Signature of lessor.) (Seal.) 
(Signature of lessee.) (Seal.) 

( Witnesses.) 

Personally appeared before me, a justice of the peace in 

and for the township of within the county aforesaid 

and did acknowledge the signing and sealing of the above agreement to be 
act and deed. 
Given under my hand this day of 186 

Justice of the Peace, 

(91.) 

AN ASSIGNMENT OF A LEASE. 

Know all men by these presents, That I (name and residence of 
assignor), for and in consideration of the sum of dollars, lawful 

money of the United States, to me duly paid, by (name and residence of 
assignee), have sold, and by these presents do grant, convey, assign, trans- 
fer, and set over, unto the said (name of assignee) , a certain indenture of 
lease, bearing date the day of in the year one thou- 

sand eight hundred and made by (name of the lessor in the lease 

assigned) , whereby he leases to me the following-described premises (here 
describe the premises briefly) , with all and singular the premises therein 



A CITIZEN OF THE UNITED STATES. 409 

mentioned and described, and the buildings thereon, together with the 
appurtenances. 

To have and to hold the same unto the said (the name of the as- 
signee), and his assigns, from the day of for and during 
all the rest, residue, and remainder yet to come of and in the term of 
years mentioned in the said indenture of lease, and all my 
rights and privileges in and under said lease; subject, nevertheless, to the 
rents, covenants, conditions, and provisions therein also mentioned. And 
I do hereby covenant, grant, promise, and agree, to and with the said (name 
of the assignee) , that the said assigned premises now are free and clear of 
and from all former and other gifts, grants, bargains, sales, leases, judg- 
ments, executions, back rents, taxes, assessments, and incumbrances 
whatsoever. 

In witness whereof, I have hereunto set my hand and seal, this 
day of one thousand eight hundred and 

(Signature.) (Seal) 
Sealed and delivered in the presence of 



(92.) 

LANDLORD'S NOTICE TO QUIT FOR NON-PAYMENT OF RENT. SHORT 

FORM. 

State of ss. a.d. 186 

To (name of tenant). You being in possession of the following-de- 
scribed premises, which you occupy as my tenant (here describe the prem- 
ises sufficiently to identify them), in the city (or township) of and 
county aforesaid, are hereby notified to quit and deliver up to 
me the premises aforesaid, in fourteen days from this date, according to 
law, your rent being due and unpaid. Hereof fail not, or I shall take a 
due course of law to eject you from the same. 

(Signature.) 
(Witness.) 

(93.) 

LANDLORD'S NOTICE TO QUIT FOR NON-PAYMENT OF RENT. 
ANOTHER FORM. 

State of City of (date) , 18 

You are hereby notified to quit the premises situate (state the situation 
of the premises, giving township or city, and street and number), which I 
have leased to you, reserving rent, or pay and satisfy the rent due and in 
arrear, being $ which amount was due on the day 

of 18 and is hereby demanded (you having neglected or 

refused to pay the amount so reserved, as often as the same has grown 
due, according to the terms of our contract, and there being no goods on 



410 THE PROPERTY RIGHTS OF 

the premises adequate to pay the rent so reserved, except sueh articles as 
are exempt from levy and sale by the laws of this State) within 
days from the date hereof, or I shall proceed against you as the law 
directs. Yours, &c. 

{Signature.') 
To (name of tenant). 

(94.) 

LANDLORD'S NOTICE TO PAY RENT DUE, OR QUIT. 
State op 



County of 
(Name of landlord), landlord, against (name of tenant), tenant. 

Take notice, That you are justly indebted unto me in the sum of 
for rent of (home, store, or other premises, describing. them generally), 
from (date when the rent was due and payable), which you are required to 
pay on or before the expiration of three days from the day of the service of 
this notice, or surrender up the possession of the said premises to 
in default of which shall proceed under the provisions of law 

to recover the possession thereof. 

Dated this day of 18 

(Name of the landlord) , Landlord. 
To (name of the tenant), Tenant, in possession of the premises above 
specified. 

(95.) 
LANDLORD'S NOTICE TO LEAVE AT END OF THE TERM. 

To (name and address of the tenant). 

Sir, — Being in the possession of a certain messuage or tenement, with 
the appurtenances, situate (describe the premises briefly), which said prem- 
ises were demised to you by me for a certain term, to wit, from the 
day of a.d. 18 until the day of 

a.d. 18 and which said term will terminate and expire on 
the day and year last aforesaid, I hereby give you notice that it is my 
desire to have again and repossess the said messuage or tenement, with the 
appurtenances, and I therefore do hereby require you to leave the same 
upon the expiration of the said hereinbefore mentioned term. 

Witness my hand, this day of city of 

a.d. 18 

(Signature.) 
(Witness). 

(96.) 

LANDLORD'S NOTICE TO DETERMINE A TENANCY AT WILL. 
State op ss. a.d. 186 

To (name of tenant). You being in possession of the following- 
iescribed premises, which you occupy as my tenant at will (describing them 



A CITIZEN OF THE UNITED STATES. 411 

sufficiently to identify them), in the (city and street), aforesaid, are hereby 
notified to quit and deliver up to me the premises aforesaid (on such a day, 
stating here the day as far distant as is made necessary by the requisite length 
of notice), according to law, it being my intention to determine your ten- 
ancy at will. Hereof fail not, or I shall take a due course of law to eject 
you from the same. 

(Signature.) 
(Witness.) 

(97.) 

RECEIPT FOR RENT, IN USE IN NEW YORK. 

Rent payable 
The tenant mentioned below hereby agrees to pay the rent of the prem- 
ises occupied and used by on the first day of the term ; and 
engages to clean the entries, stairs, stoops, and privy thereof, weekly, in 
turn with other occupants, and not incumber the same with furniture, fuel, 
or rubbish, nor keep any hog, dog, or fowl, nor deposit ashes or garbage 
on said premises, nor in the sinks or privies, nor split wood on the hearth, 
floor, or yard. 

New York, 186 

Received from (name of tenant paying) , dollars, for months 

rent, from 18 to 18 for (stone, brick, 

or other) house, No. Street, in the city of New York. 



CHAPTER IX. 
GIFTS. 

Any person competent to transact ordinary business may give 
whatever he or she owns to any other person ; but a gift by a minor, 
an insane person, or a person under guardianship or under com- 
pulsion, would be voidable by the giver, or by a person acting for 
him or her by legal authority. 

It is essential to a gift that it goes into effect at once and com- 
pletely; and a promise to give cannot be enforced and has no legal 
validity, and may be revoked by the promisor, because it is entirely 
without consideration. This want of consideration is essential to a 
gift ; for even if the transaction be called a gift, if any considera- 
tion which the law acknowledges as good enters into it, it is no 
longer a gift, but a sale or barter. 



412 THE PROPERTY RIGHTS OF 

■ 

It is because there is no consideration for a gift that delivery is 

essential to its validity. But this delivery may be constructive, 
that is, it may be any such delivery as the nature of the thing and 
its actual position require : as a delivery of a part for the whole ; or 
of a key to the lock under which the property is ; or of a cumbrous 
mass, like a load of hay, for instance, by taking the donee (or person 
to whom the gift is made) near it, and pointing it out, with words 
of gift. 

A gift made and completed by actual delivery passes the prop- 
erty absolutely, and cannot be revoked by the giver; with the 
exception stated in the last paragraph of this page. 

A gift by an order on another party in possession is not complete 
until the order is presented and accepted ; until then it may be 
revoked. So a gift by a check or order or draft may be revoked 
before payment or a binding acceptance thereof. 

As a gift requires delivery to the donee, so it requires accept- 
ance by him. If made perfect by delivery and acceptance, it is 
irrevocable by the giver; but if it be prejudicial to existing 
creditors, it is, as a transfer without consideration, void as to them. 
It is also void as to subsequent creditors, if it be made under actual 
or expected insolvency, or with a fraudulent purpose as to future 
creditors. 

Gifts are sometimes made in expectation of death, or, in legal 
phrase, causa mortis. Such gifts are watched by the law with great 
care, because fraud is so easy in such cases, as the giver dies and can 
no longer deny or explain the transaction. Therefore, there must 
be evidence of a distinct delivery or transfer of possession at the time ; 
and this delivery must not be in the way of a trust, or for any such 
purpose, but as an outright gift. If it be by a note, the note cannot be 
enforced against the representatives of the deceased, because wholly 
without consideration. If it be by a check on a bank, the check is 
invalid, unless it be presented and paid before the death of the 
drawer. But a gift of bank-bills causa mortis is valid, if the 
bills are delivered by the giver. A gift causa mortis by an order 
on one in possession is not valid, unless it is presented and ac- 
cepted before the giver's death. And a gift causa mortis^ even 
if accompanied by delivery, may be revoked by the giver, if he 
recovers and does not die. 



A CITIZEN OF THE UNITED STATES. 413 



CHAPTER X. 
FINDING. 

It is a general rule that the finder of lost property has a 

valid claim against all the world but the owner. The place in 
which, or the circumstances under which, it is found, generally make 
no exception to this rule ; but sometimes they do. In Massachu- 
setts, it was held that the finder of a pocket-book left by the owner 
in a shop could not hold it against the keeper of the shop in which 
it was found. But in England this case occurred : a man found 
on the floor of a shop a large parcel of bank-notes, and handed 
tli em to the shopkeeper for the owner. The finder soon after went 
abroad, and staid three years. On his return, inquiring of the shop- 
keeper, he learned that the bills had been advertised by him, and 
no one had claimed them. The finder then demanded them of the 
shopkeeper, offering to pay the cost of the advertisement. The 
shopkeeper refused to give them up, and the finder brought his 
action, and recovered judgment against the shopkeeper for the 
whole amount. 

A finder of property need not take charge of it; bat if lie 
chooses to do so, he becomes what the law calls a depository, and is 
liable to the owner for any loss of or injury to the property from 
the finder's gross negligence. We think, although it is not quite 
certain, that a finder who takes care of property may charge the 
owner for necessary expense and labor in such care. 

A finder who refuses the goods to the true owner, knowing him 
to be the true owner, is liable to an action for their value ; but not 
if he refuses because he does not know him to be the true owner. 

If a specific reward has been offered for lost property, the finder 
may refuse to give it up without payment of the reward ; but it is 
not so if the offer be general only, as of a liberal reward. 

If a person casts away and abandons any property as entirely 
worthless, the finder thereof may hold it against the original owner. 

A finder of property who knows the true owner, and conceals 
the property, or appropriates it to his own use, is guilty of theft. 



414 THE PROPERTY RIGHTS OF 



CHAPTER XL 
CONSIDEEATIOlsr. 

SECTION I. 
THE NEED OF A CONSIDERATION. 

It is an ancient and well-established rule of the common law 

prevailing in this country, that no promise can be enforced at law, 
unless it rests upon a sufficient consideration / by which word is 
meant a cause or reason for the promise. If it do not, it is called 
a naked bargain, and the promisor, even if he admits his promise, 
is under no legal obligation to perform a promise that he made 
without a consideration. 

The word "consideration," as it is used in this rule, has a 
peculiar and technical meaning. It denotes some substantial cause 
for the promise. This cause must be one of two things : either a 
benefit to the promisor, or else an injury or loss to the promisee 
sustained by him at the instance and request of the promisor. * 
Thus, if A promises B to pay him a thousand dollars in three 
months, and even promises this in writing, the promise is worthless 
in law if A makes it as a merely voluntary promise, without a 
consideration. But if B, or anybody for him, gives A to-day a 
thousand dollars in goods or money, and this was the ground and 
cause of the promise, then it is enforceable. And if A got nothing 
for his promise, but B, at the request of A, gave the same goods or 
money to C, this would be an equally good consideration, and the 
promise to pay B would be equally valid in law. 

There are two exceptions to this rule. One is when the promise 
is made by a sealed instrument, or deed (every written instrument 
which is sealed is a deed). Here the law is said to imply a consid- 
eration ; the meaning of which is, that it does not require that any 
consideration should be proved. The seal itself is said to bo a con- 
sideration, or to import a consideration. 

The second exception relates to negotiable paper, and is an 
instance in which the law-merchant has materially qualified the 
common law. We shall speak more fully of this exception when 
we treat of negotiable paper. 



A CITIZEN OF THE UNITED STATES. 415 

SECTION II. 
WHAT IS A SUFFICIENT CONSIDERATION. 

This requirement of a consideration sometimes operates harshly 

and unjustly, and permits promisors to break their word under cir- 
cumstances calling strongly for its fulfilment. Courts have been 
led by this to say that the consideration is sufficient if it be a 
substantial one, although it be not an adequate one. This is the 
unquestionable rule now, and it is sometimes carried very far. In 
one case, an American court refused to inquire into the adequacy 
of the consideration, — or whether it was equal to the promise 
made upon it, — and said, if there was the smallest spark of con- 
sideration it was enough, if the contract was fairly made with a 
full understanding of all the material facts. Still, there must be 
some consideration. 

The law detests litigation ; at least courts say so ; and there- 
fore they consider any thing a sufficient consideration which arrests 
and suspends or terminates litigation. Thus the compromise, or 
forbearance, or mutual reference to arbitration, or any similar set- 
tlement of a suit or of a claim, is a good consideration for a prom- 
ise founded upon it. And it is no defence to a suit on this promise 
to show that the claim or suit thus disposed of would probably have 
been found to have no foundation or substance. If there be an 
honest claim, which he who advances it believes to be well 
grounded, and which within a rational possibility may be so, this 
is enough ; the court will not go on and try the validity of the 
claim or of the suit in order to test the validity of a promise which 
rests upon its settlement ; for the very purpose for which it favors 
this settlement is the avoidance of all necessity of investigating the 
claim by litigation. But, for reasons of public policy, no promise 
can be enforced of which the consideration was the discontinuance 
of criminal proceedings ; or any conduct by which public interests 
are harmed, as, for example, the procurement of the passage of a 
law by corrupt means. 

If any work or service is rendered to one, or for one, and he 
requested the same, it is a good consideration for a promise of 
payment ; and if he makes no promise, the law will imply the 
promise, that is, will suppose that he has made it, and will not per- 
mit him to deny it. The rule is the same as to payment for goods, 
or property of any kind, delivered to any one at his request. 

No person can make another his debtor against that other's 
will, by a voluntary offer of work, or service, or money, or goods. 



416 TEE PROPERTY RIGHTS OF 

But if that other accept what is thus offered, and retain the benefit 
of it, the law will, generally, imply or presume that it was offered 
at the request of that other party, and will also imply his promise 
to pay for it, and will enforce the promise ; unless it is apparent, or 
is shown, that it was offered and received as a mere gift. 

A promise is a good consideration for a promise ; and it is one 
which frequently occurs in fact. 

If A says to B, " If you will deliver goods to C, I will pay for 
them," although there is no obligation upon B to deliver the goods, 
if he does deliver them he furnishes a consideration for the agree- 
ment, and may enforce it against A. 

An agreement by two or more parties to refer disputes or claims 
between them to arbitration is not binding upon any of the parties, 
unless all have entered into it. 

The principle that a promise is a good consideration for a prom- 
ise has been sometimes applied to subscription-papers : all who sign 
them being held, on the ground that the promise of each is a good 
consideration for the promises of the rest. The law on the subject 
of these subscription-papers, and of all voluntary promises of con- 
tribution, is substantially this : no such promises are binding unless 
something is paid for them, or unless some party for whose benefit 
they are made, — and this party may be one or more of the sub- 
scribers, — at the request, express or implied, of the promisors, and 
on the faith of the subscriptions, incurs actual expense or loss, or 
enters into valid contracts with other parties which will occasion 
expense or loss. As the objection to these promises, or the doubt 
about them, comes from the want of consideration, it may be cured 
by a seal to each name, or by one seal which all the parties consider 
the seal of each. 

It is to be regretted that the law does not regard a merely 
moral consideration as a sufficient legal consideration ; but so it is. 
Thus, it has been held in this country that a note given by a father 
to a person who had given needful medicines, food, and shelter to 
his sick son, who was of full age, was void in law, because there 
was no legal consideration. And the same doctrine was applied 
where a son made a similar promise for food and support to his 
aged father. If, in either case, the promise had been made before 
the food or other articles were supplied, or even a request made 
before the supply, then the supply of the food and support would 
have been a good consideration. But they had all been supplied 
before any request or promise, and nothing was left but the moral 
obligation of a father to compensate one who had supported his 
son, or of a son to support his father; and this the law does not 
deem sufficient to make even an express promise enforceable at 
law. 



A CITIZEN OF THE UNITED STATES. 417 



SECTION III. 
AN ILLEGAL CONSIDERATION. 

If the whole of a consideration, or if any part of the considera- 
tion of an entire and indivisible promise, be illegal, the promise 
founded upon it is void. Thus, where a note was given in part for 
the compounding of penalties and suppressing of criminal prosecu- 
tions, it was held to be wholly void and uncollectible. And where 
a part of the consideration of a note was spirituous liquors sold by 
the payee in violation of a statute, such note was held to be wholly 
void. But if the consideration consists of separable parts, and the 
promise consists of corresponding separable parts, which can be 
apportioned and applied, part to part, then each illegality will 
affect only the promise resting on it ; for in fact there are many 
considerations and many promises. 

If the consideration be entire and wholly legal, and the prom- 
ise consists of separable parts, one legal and the other illegal, the 
promisee can enforce that part which is legal. 

SECTION IV. 
AN IMPOSSIBLE CONSIDERATION. 

No contract or promise can be enforced by him who knew that 
the performance of it was wholly impossible ; and therefore a 
promise to do a thing which is obviously and certainly impossible 
is not a sufficient consideration in law to sustain a promise by 
the other party. But if one makes a promise, he cannot always 
defend himself when sued for non-performance by showing that 
performance was impossible; for it may be his own fault, or his 
personal misfortune, that he cannot perform it. He had no right 
to make such a promise, and must answer in damages ; or if he 
had a right to make it in the expectation of performance, and 
this has become impossible subsequently, — as by loss of property, 
for example, — this is his misfortune, and no answer to a suit 
on the promise. There are, however, obviously promises or con- 
tracts, which, fi-om their very nature, must be construed as if the 
promisor had said, u I will do so and so, if I can." For example, if 
A promises to work for B one year, at $20 a month, and at the end 
of six months is wholly disabled by sickness, he is not liable to an 
action by B for breach of his contract ; and he can recover his pay 
for the time that he has spent in B's service. A mere want of 
money, which makes a pecuniary impossibility, is not regarded by 

the law as a legal impossibility. 

27 



418 THE PROPERTY RIGHTS OF 

SECTION V. 
FAILURE OF CONSIDERATION. 

If a promise be made upon a consideration which is apparently 

valuable and sufficient, but which turns out to be nothing; or if 
the consideration was originally good, but becomes wholly valueless 
before part performance on either side, — there is an end of the con- 
tract, and the promise cannot be enforced. And if money were 
paid on such a consideration, it can be recovered back. But only 
the sum paid can be so recovered, without any increase or addition 
as compensation for the plaintiff's loss and disappointment, unless 
there were fraud or oppression. 

If the failure of consideration he partial only, leaving a sub- 
stantial, though far less valuable, consideration behind, this may 
still be a sufficient foundation for the promise, if that be entire. 
The promisor may then be sued on the promise ; but he will then 
be entitled, by deduction, set-off, or in some other proper way, to 
due allowance or indemnity for whatever loss he may sustain as to 
the other parts of the bargain, or as to the whole transaction, from 
the partial failure of the consideration. Thus, if he promised so 
much money for work clone in such a way or as the price of a thing 
to be made and sold to him, if no work is done or the thing is not 
made or sold, there is an end of the promise, because the considera- 
tion has wholly failed. But if the work was done, but not as it 
should have been, or the thing made and sold, but not what it should 
have been, and the promisor accepted the work or the thing, he may 
now show that the consideration for his promise has partially failed, 
and may have a proportionate reduction in his promise, or in the 
amount he must pay. And if the promise be itself separable into 
parts, and a distinct part or proportion of the consideration failed, 
to which part some distinct part or proportion of the promise could 
be applied, that part of the promise cannot be enforced, although 
the residue of the promise may be. 

If A agrees with B to work for him one year, or any stated 
time, for so much a month, or so much for the whole time, and, 
after working a part of the time, leaves B without good cause, it is 
the ancient and still prevailing rule that A can recover nothing in 
any form or way. It has, however, been held in New Hampshire, 
that A can still recover whatever his services are worth, B having 
the right to set-off or deduct the amount of any damage he may 
have sustained from A's breach of the contract. This view seems 
just and reasonable, although it has not been supported by adjudica- 
tion in other States. If A agrees to sell to B five hundred barrels 



A CITIZEN OF THE UNITED STATES. 419 

of flour at a certain price, and, after delivering one-half, refuses to 
deliver any more, B can certainly return that half, and pay A 
nothing. But if B chooses to retain that half, or if he has so dis- 
posed of or lost it that he cannot return it, he must pay what it is 
worth, deducting all that he loses by the breach of the contract. 
And this case we think analogous to that of a broken contract of 
service ; but B's liability to pay, even in the case supposed as to 
goods, has been denied by some courts. 

A difficulty sometimes arises where A, at the request of B, 
undertakes to do something for B for which he is to be paid a cer- 
tain price, and in doing it he departs materially from the directions 
of B and from his own undertaking. What are now the rights of 
the parties? This question arises most frequently in building con- 
tracts, in which there is often some departure from the original 
undertaking. The general rules are these: If B assent to the 
alteration, it is the same thing as if it were a part of the original 
contract. He may assent expressly, by word or in writing; or 
constructively, by seeing the work, and approving it as it goes on, 
or being silent; for silence under such circumstances would gen- 
erally be equivalent to an approval. But if the change be one which 
B had a right, either from the nature of the change or the appear- 
ance of it, or A's language respecting it, to suppose would add 
nothing to the cost, then no promise to pay an increased price would 
be inferred from either an express or tacit approval. Generally, as 
we have seen, if A does or makes what B did not order or request, 
B can refuse to accept it, and, if he refuses, will not then be held to 
pay for it ; but if he accepts it, he must pay for it. This consequence 
results, however, only from a voluntary acceptance. For if A choose, 
without any request from B, to add something to B's house, or make 
some alteration in it, which being done, cannot be undone or taken 
away without detriment to the house, B may hold it, and yet not 
be liable to pay for it ; and A has no right to take it away, unless he 
can do so without inflicting any injury whatever on B. This rule 
would apply whether the addition or alteration were larger o* 
smaller. 

It is sometimes provided in building contracts that B shall 
pay for no alteration or addition unless previously ordered by him 
in writing. But if there be such provision, B would be liable for 
any alteration or addition he ordered in any way, or voluntarily 
accepted after it was made, when he could have rejected it. 

So it is sometimes agreed that any additions or alterations 
shall be paid for at the same rate as the work contracted for. The 
law would imply this agreement if the parties did not make it 
expressly. 



420 THE PROPERTY RIGHTS OF 



CHAPTER XII. 

AGREEMENTS. 

SECTION I. 
THE LEGAL MEANING OF AGREEMENT. 

No contract which the law will recognize and enforce exists 
until the parties to it have agreed upon the same thing in the same 
sense. Thus, in a case where the defendants by letter offered to 
the plaintiffs a certain quantity of "good" barley, at a certain price, 
plaintiffs replied : " We accept your offer, expecting you will give 
us fine barley and full weight." The jury found that there was a 
distinction in the trade between the words "good" and "fine," and 
the court held that there was not a sufficient acceptance to sustain 
an action for non-delivery of the barley. So, where a person sent 
an order to a merchant for a particular quantity of goods on certain 
terms of credit, and the merchant sent a less quantity of goods and 
at a shorter credit, and the goods were lost by the way, it was held 
by the court that the merchant must bear the loss ; for there was 
no sale or contract between the parties. 

There is an apparent exception to this rule when, for example, 
A declares that he was not understood by B, or did not understand 
B, in a certain transaction, and that there is therefore no bargain 
between them ; and B replies by showing that the language used 
on both sides was explicit and unequivocal, and constituted a dis- 
tinct contract. Here B would prevail. The reason is, that the law 
presumes that every person means that which he distinctly says. If 
A had offered to sell B his horse for twenty dollars, and received 
the money, and then tendered to B his cow, on the ground that he 
was thinking only of his cow, and used the word horse by mistake, 
this would not avoid his obligation, unless he could show that the 
mistake was known to B ; and then the bargain would be fraudulent 
on B's part. This would be an extreme case ; but difficult questions 
of this sort often arise. If A had agreed to sell, and had actually 
delivered, a cargo of shingles at " 3.25," supposing that he was to 
receive that price for a "bunch," which contains five hundred, and 
B supposed that he had bought them at that price for a " thousand," 
which view should prevail? The answer would be, first, that if 



A vlUZEN OF THE UNITED STATES. 421 

there was, honestly and actually, a mutual mistake, there was no 
contract, and the shingles should be returned. But, secondly, if a 
jury should be satisfied, from the words used, from the usage pre- 
vailing where the bargain was made and known to the parties, or 
from other circumstances attending the bargain, that B knew that 
A was expecting that price for a bunch, B would have to pay it; 
and if they were satisfied that A knew that B supposed himself to 
be buying the shingles by the thousand, then A could not reclaim 
the shingles, nor recover more than that price. In such a case it 
was held that unless the two parties had the same understanding as 
to what the sum of $3.25 paid for, there was no bargain. 

In construing a contract, the actual and honest intention of the 
parties is always regarded as an important guide. But it must be 
their intention as expressed in the contract. 

If the parties, or either of them, show that a bargain was 
honestly but mistakenly made which was materially different from 
that intended to be made, it would be a good ground for declaring 
that there was no contract. 

MISTAKES. 

Mistakes of fact in a contract can be corrected by the courts, 

but not mistakes of law, — no man being permitted to take advantage 
of a mistake of the law either to enforce a right or avoid an obliga- 
tion ; for it would be obviously dangerous and unwise to encourage 
ignorance of the law, by permitting a party to profit, or to escape, 
by his ignorance. But the law which one is required at his peril to 
know is the law of his own country. Ignorance of the law of a 
foreign state is ignorance of fact. In this respect the several States 
of the Union are foreign to each other. Hence, money paid through 
ignorance or mistake of the law of another State may be recovered 
back. 

fraud. 

Fraud annuls all obligation and all contracts into which it 
enters, and the law relieves the party defrauded. If both of the 
parties act fraudulently, neither can take advantage of the fraud of 
the other; and if one acts fraudulently, he cannot set his own fraud 
aside for his own benefit. Thus, if one gives a fraudulent bill of 
sale of property for the purpose of defrauding his creditors, he can- 
not set that bill aside and annul that sale, although his creditors 
who are injured by it may. 



422 THE PROPERTY RIGHTS OF 



SECTION II. 
WHAT IS AN ASSENT. 

The most important application of the rule stated at the begin- 
ning of this chapter is the requirement that an acceptance of a 
proposition must be a simple and direct affirmative, in order to con- 
stitute a contract. For if the party receiving the proposition or 
offer accepts it on any condition, or with any change of its terms or 
provisions which is not altogether immaterial, it is no contract until 
the party making the offer consents to these modifications. 

Therefore, if a party offers to buy certain goods at a certain 
price, and directs how the goods shall be sent to him, and the owner 
accepts the offer and sends the goods as directed, and they are lost 
on the way, it is the buyer's loss, because the goods were his by the 
sale, which was completed when the offer was accepted. But if the 
seller accepts the offer, and in his acceptance makes any material 
modification of its terms, and then sends the goods, and they are 
lost, it is his loss now, because the contract of sale was not com- 
pleted. 

Nor will a voluntary compliance with the conditions and terms 
of a proposed contract always make it a contract obligatory on the 
other party, unless there have been an accession to, or an accept- 
ance of, the proposition itself. In general, if A says to B, If yon 
will do this, I will do that ; and B instantly does what was pro- 
posed to him, — this doing so is an acceptance, and A is bound. But 
if the doing of the thing may be something else than an acceptance 
of the offer, or if the thing may be done for some other reason than 
to signify an acceptance or assent, there must be express acceptance 
also, or there is no bargain. 



SECTION III. 
OFFERS MADE ON TIME. 

It sometimes happens that one party makes another a certain 
offer, and gives him a certain time in which he may accept it. The 
law on this subject was once somewhat uncertain, but may now be 
considered as settled. It is this. If A makes an offer to B, which 
B at once accepts, there is a bargain. But it is not necessary that 
the acceptance should follow the offer instantaneously. B may take 
time to consider, and although A may expressly withdraw his offer 
at any time before acceptance, yet if he does not do so, B may 
accept within a reasonable time ; and if this is done, A cannot say, 



A CITIZEN OF THE UNITED STATES. 423 

"I have changed my mind." What is a reasonable time must 
depend upon the circumstances of each case. If A when he makes 
the offer says to B that he may have a certain time wherein to 
accept it, and is paid by B for thus giving him time, he cannot 
withdraw the offer; or if he withdraws it, for this breach of his 
contract, the other party, B, may have his action for damages. If 
A is not paid for giving the time, A may then withdraw the offer at 
once, or whenever he pleases, provided B has not previously ac- 
cepted it. But if B has accepted the offer before the time which 
was given expired, and before the offer was withdrawn, then A is 
bound, although he gave the time voluntarily and without considera- 
tion. For his offer is to be regarded as a continuing offer during all 
the time given, unless it be withdrawn. A railroad company asked 
for the terms of certain land they thought they might wish to buy. 
The owner said, in a letter, they might have it at a certain price, if 
they took it within thirty days. After some twenty-five days the 
railroad company wrote accepting the offer. The owner says : No, 
I have altered my mind ; the land is worth more ; and I have a 
right to withdraw my offer, because you paid me nothing for the 
time of thirty days allowed you. But the court held that he was 
bound, because this was an offer continued through the thirty days, 
unless withdrawn. They said that the writing when made was 
without consideration, and did not therefore form a contract. It was 
then but an offer to contract ; and the party making the offer most 
undoubtedly might have withdrawn it at any time before accept- 
ance. But he could not withdraw the offer after it was accepted, 
for then the minds of the parties met, and the contract was com- 
plete, and no withdrawal could then be made. 



SECTION IV. 
A BARGAIN BY CORRESPONDENCE. 

When a contract is made by correspondence, the question occurs, 

At what time, or by what act, is the contract completed ? The law, 
as now settled in this country, may be stated thus : If A writes to 
B proposing to him a contract, this is a continued proposition or 
offer of A until it reaches B, and for such time afterwards as would 
give B a reasonable opportunity of accepting it. It may be with- 
drawn by A at any time before acceptance ; but is not withdrawn 
in law until a notice of withdrawal reaches B. This is the impor- 
tant point. Thus, if A in Boston writes to B in New Orleans, 
offering him a certain price for one hundred bales of cotton ; and 
the next day alters his mind, and writes to B, withdrawing his 



424 THE PROPERTY RIGHTS OF 

offer ; if the first letter reaches B before the second reaches him, 
although after the second was written and mailed, B has a right to 
accept the offer before he gets the letter withdrawing it, and by his 
acceptance he binds A. But if B delays his acceptance until the 
second letter reaches him, the offer is then effectually withdrawn. 
It is a sufficient acceptance if B writes to A declaring his accept- 
ance, and puts his letter into the post-office. It seems now quite 
clear that as soon as the letter leaves the post-office, or is beyond 
the reach of the writer, the acceptance is, complete. That is, on the 
5th of May, A in Boston writes to B in New Orleans, offering to 
buy certain goods there at a certain price. On the 8th of May, A 
writes that he has altered his mind, and cannot give so much, and 
mails the letter. On the 14th of May, B in New Orleans receives 
the first letter, and the next day, the 15th, answers it, saying that 
he accepts the offer, and mails his letter. On the 17th, he receives 
the second letter of A withdrawing the offer. Nevertheless the 
bargain is complete and the goods are sold. But if B had kept his 
letter of acceptance by him until he had received A's letter of 
withdrawal, he could not then have put his letter into the mail and 
bound A by his acceptance. 

The party making the offer by letter is not bound to use the 
same means for withdrawing it which he uses for making it ; be- 
cause any withdrawal, however made, terminates the offer, if only 
it reaches the other party before his acceptance. Thus, if A in the 
case just supposed, a week after he has sent his offer by letter, 
telegraphs a withdrawal to B, and this withdrawal reaches him 
before he accepts the offer, this withdrawal would be effectual. So 
if he sent his offer by letter to England, in a sailing ship, and a fort- 
night after sent a revocation in a steamer, or by telegraph, if this 
last arrives before the first arrived and was accepted, it would be an 
effectual revocation. 



SECTION V. 

WHAT EVIDENCE MAY BE RECEIVED IN REFERENCE TO 
A WRITTEN CONTRACT. 

If an agreement upon which a party relies be oral only, it must 
be proved by evidence. But if the contract be reduced to writing, 
it proves itself; and now no evidence whatever is receivable for the 
purpose of varying the contract or affecting its obligations. The 
reasons are obvious. The law prefers written to oral evidence, 
from its greater precision and certainty, and because it is less open 
to fraud. And where parties have closed a negotiation and reduced 



A CITIZEN OF THE UNITED STATES. 425 

the result to writing, it is.presumed that they have written all they 
intended to agree to, and, therefore, that what is omitted was finally 
rejected by them. 

But some evidence may always be necessary, and therefore 
admissible ; as evidence of the identity of the parties to the con- 
tract, or of the things which form its subject-matter. Quite often, 
neither the court nor the jury can know what person, or what 
thing, or what land, a contract relates to, unless the parties agree 
in stating this, or evidence shows it. The rule on this subject is, 
that while no evidence is receivable to contradict or vary a writ- 
ten contract, evidence may be received to explain its meaning, and 
show what the contract is in fact. 

There are some obvious inferences from this rule. The first is, 
that as evidence is admissible only to explain the contract, if the 
contract needs no explanation, — that is, if it be by itself perfectly 
explicit and unambiguous, — evidence is inadmissible; because it is 
wholly unnecessary, and can be offered only to vary the meaning and 
force of the contract, and that is not permitted. Another, follow- 
ing from this, is, that if the evidence purports, under the name of 
explanation, to give to the contract a meaning which its words do 
not fairly bear, this is not permitted; because such evidence would 
in fact make a new contract. 

A frequent use of oral evidence is to explain, by means of per- 
sons experienced in the particular subject of the contract, the mean- 
ing of technical or peculiar words and phrases ; and such witnesses 
are called experts, and are very freely admitted. 

It may be remarked, too, that a written receipt for money is not 
within the general rule as to written contracts, being always open 
not only to explanation, but even to contradiction, by extrinsic 
evidence. And this is true of the receipt part of any instrument. 
If a written instrument not only recites or acknowledges the receiv- 
ing of money or goods, but contains also a contract or grant, such 
instrument, as to the contract or grant, is no more to be affected by 
any evidence than if it contained no receipt ; but as to the receipt 
itself, it may be varied or contradicted in the same manner as if the 
instrument contained nothing else. Thus, if a deed recites that it 
was made in " consideration of ten thousand dollars, the receipt 
whereof is hereby acknowledged," the grantor may sue for the 
money, or any part of it, and prove that the amount was not paid ; 
for this affects only the receipt part of the deed. But he cannot 
say that the grant of the land was void because he never had his 
money, nor that any agreement the deed contained was void for 
such a reason ; because, if he proved that the money was not paid, 
and offered this evidence for the purpose of thus annulling his 



426 TEE PROPERTY RiGHTS OF 

grant or agreement, he would be offering evidence to affect the 
other part of the deed ; and that he cannot do. 

A legal inference from a written promise can no more be re- 
butted by evidence than if it were written. Thus, if A, by his 
note, promises to pay B a sum of money in sixty days, he cannot, 
when called upon, resist the claim by proving that B, when the note 
was made, agreed to wait ninety days ; and if A promise in writing 
to pay money, and no time is set, this is by force of law a promise 
to pay on demand; and evidence is not receivable to show that a 
distant period was agreed upon. 

Generally speaking, all written instruments are construed and 
interpreted by the law according to the simple, customary, and 
natural meaning of the words used. 

It should be added, that when a contract is so obscure or uncer- 
tain that it must be set wholly aside, and regarded as no contract 
whatever, it can have no force or effect upon the rights or obliga- 
tions of the parties, but all of these are the same as if they had not 
made the contract. 



SECTION VI. 
CUSTOM OR USAGE. 

A custom or usage, which may be regarded as appropriate to a 

contract, has often great weight in reference to it. This it may have, 
first, as to the construction or meaning of its words ; and next, as to 
the intention or understanding of the parties. 

The ground and reason for this influence of a custom is this : 
If it exist so widely and uniformly among such persons as make the 
contract, and for so long a time, that every one of them must be 
considered as knowing it, and acting with reference to it, then it 
ought to have the same force as if both parties expressly adopted 
it ; because each party has a right to think that the other acted 
upon it. 

Sometimes this is carried very far. In one English case, a man 
had agreed to leave in a certain rabbit warren ten thousand rabbits ; 
and the other party w r as permitted to prove that, by the usage of 
that trade, a thousand meant one hundred dozen, or twelve hundred. 
In an American case, a man agreed to pay a carpenter twelve shil- 
lings a day for every man employed by him about a certain building ; 
the carpenter was permitted to prove that, by the usage of that 
trade, " a day " meant ten hours' work ; and as his men had worked 
twelve and a haltj he was permitted to charge fifteen shillings, or 
for one and one-fourth days' work, for every day so spent. 



A CITIZEN OF THE UNITED STATES. 427 

In these cases the custom affected the meaning of the words. 
But it also has the effect of words; as if a merchant employed a 
broker to sell his ship, and nothing was said about terms, and the 
broker did something about it, and the ship was sold : if the broker 
could prove a universal and well-established custom of that place, 
that for doing what he did under the employment he was entitled 
to full commissions, he would have them, as much as if they were 
expressly promised. 

Any custom will be regarded by the court which comes within 
the reason of the rule that makes a custom a part of the contract. 
It comes within the reason only when it is so far established, and 
so well known to the parties, that it must be supposed that their 
contract was made with reference to it. For this purpose, the cus- 
tom must be established and not casual, uniform and not varying, 
general and not personal, and known to all the parties. But the 
degree in which these characteristics must belong to the custom will 
depend in each case upon its peculiar circumstances. Let us suppose 
a contract for the making of an article which has not been made 
until within a dozen years, and only by a dozen persons. Words 
are used in this contract of which the meaning is to be ascertained ; 
and it is proved that these words have been used and understood 
in reference to this article, always, by all who have ever made it, in 
one way. Then this custom will be permitted to explain and inter- 
pret the words of the parties. But if the article had been made a 
hundred years or more, in many countries and by multitudes of 
persons, the evidence of this use of these words by a dozen persons 
in a dozen years might not be sufficient to give to this practice the 
force of custom. 

Other facts must be considered ; as how far the meaning sought 
to be put on the words by custom varies from their common mean- 
ing in the dictionary, or from general use ; and whether other makers 
of the article use these words in various senses, or use other words to 
express the alleged meaning. Because the main question is always 
this : Can it be said that both parties must have used, or ought to 
have used, these words in this sense, and that each party had good 
reason to believe that the other party so used them ? Thus, when 
the brief but violent "Moras multicaulis" (or mulberry) speculation 
prevailed, a few years ago, a man made a contract to sell and de- 
liver a certain number of the trees " a foot high ; " and the buyer 
was permitted to prove that, by the usage and custom of all who 
dealt in that article, the length was measured to the top of the ripe 
wood only, rejecting the green and immature top; and the "foot 
high" was to be so understood. 



428 THE PROPERTY RIGHTS OF 

No custom, however, can be proved or permitted to influence the 

construction of a contract, or vary the rights of the parties, if the 
custom itself be illegal. For this would be to permit, or even oblige, 
parties to break the law, because others had broken it. 

Nor would the courts sanction a custom which was in itself un- 
reasonable and oppressive. There was a vessel cast ashore on the 
coast of Virginia, and the master sold the cargo on the spot ; and 
on trial the jury found that he was authorized to do so by the 
usage there ; but the Supreme Court of Massachusetts, where the 
ship and cargo were insured, said that the usage was unreasonable, 
and they would not allow it. The Supreme Court of Pennsylvania 
in one case refused to allow a usage, as unreasonable, by which 
plasterers charged half the size of the windows at the price per 
square yard agreed on for the plastering of a house. 

Lastly, no custom, however universal, or old, or known (unless 
it has actually become law), has any force whatever, if the parties 
see fit to exclude and refuse it by the words of their contract, or 
provide that the thing which the custom affects shall be done in a 
way different from the custom. For a custom can never be set 
up against either the express agreement or the clear intentions of 
the parties. 

HOW CONTRACTS OR AGREEMENTS SHOULD BE MADE. 

Every agreement should he written, and signed by both parties, 
and witnessed, where this can be done ; although the law absolutely 
requires witnesses in very few cases, and in none of mere contract. 
It is prudent, however, to have them ; for it is a rule of law that 
things which cannot be proved and things which do not exist are 
the same in the law. . 

Every thing agreed upon should be written out distinctly, and 
care should be taken to say all that is meant, and just what is meant, 
and nothing else ; for, as above stated, it is a rule of law that no 
oral testimony shall control a written agreement, unless fraud can be 
proved. Against fraud nothing stands. 

FORMS ANNEXED TO THIS CHAPTER. 

(98.) A general agreement, sufficient for many puiposes. 

(99.) A general agreement, as used in the Western States. 
(100.) A general contract for mechanics' work. 

(101.) An agreement for purchase and sale of land, in use in the Mid- 
dle States. 
(102.) An agreement for sale of land, in use in the Western States. 



A CITIZEN OF THE UNITED STATES. 429 

(103.) An agreement for warranty deed, in use in the Western States. 

(104.) A contract to convey real estate, in use in the Middle States. 

(105.) An agreement for the purchase of an estate, in use in New Eng- 
land. 

(106.) An agreement for the sale of an estate by private contract. 

(107.) An agreement to be signed by an auctioneer, after a sale by 
auction. 

(108.) An agreement to be signed by the purchaser, after a sale by 
auction. 

(109.) An agreement to make an assignment of a lease. 

(110.) An agreement for making a quantity of manufactured articles. 

(111.) An agreement between a trader and a book-keeper. 

(112.) An agreement for damages in laying out or altering a road. 

(113.) An agreement between a person retiring from the active part of 
a business and another who is to conduct the same for their 
mutual benefit. 

(114.) A brief building contract. 



(98.) 
A GENERAL AGREEMENT, SUFFICIENT FOR MANY PURPOSES. 

MUTUAL AGREEMENT OP TWO. 

A. B., of (place of residence, and business or profession) , and C. D., of 
(as before), have agreed together, at (place), on (the day should always be 
named) , and do hereby promise and agree to and with each other, as fol- 
lows: A. B., in consideration of the promises hereinafter made by C. D. 
(if there are any such promises) , and of (here state any other consideration 
which A. B. has), promises and agrees to and with C. D., that (here set 
forth, as above directed, the whole of what A. B. undertakes to do). 

And C. D., in consideration (set forth consideration and promise as 
before). 

Witness our hands, to two copies of this agreement interchangeably. 

A. B. 
CD. 

Signed and interchanged in presence of 
E. F. 
G. H. 



(99.) 

A GENERAL AGREEMENT, AS USED LN THE WESTERN STATES. 

Articles of agreement, Made this day of 

in the year of our Lord one thousand eight hundred and sixty- 
between party of the first part, and party of the 

second part, 



430 THE PROPERTY RIGHTS OF 

Witnesseth, That the said party of the first part hereby covenants 
and agrees, that if the party of the second part shall first make the pay- 
ments and perform the covenants hereinafter mentioned on part 
to be made and performed, the said party of the first part will 

And the said party of the second part hereby covenants and agrees to pay 
to said party of the first part the sum of dollars, in the manner 

following : dollars cash in hand paid, the receipt whereof is 

hereby acknowledged, and the balance 

with interest at the rate of per centum per annum, payable 

annually. And in case of the failure of the said 
party of the second part to make either of the payments, or perform any 
of the covenants on part hereby made and entered into, this 

contract shall, at the option of the party of the first part, be forfeited and 
determined, and the party of the second part shall forfeit all payments 
made by on this contract, and such payments shall be retained 

by the said party of the first part in full satisfaction and in liquidation of 
all damages by sustained, and shall have the right to 

It is mutually agreed that all the covenants and agreements herein con 
tained shall extend to and be obligatory upon the heirs, executors, admin- 
istrators, and assigns of the respective parties. 

In witness whereof, The parties to these presents have hereunto 
«et their hands and seals, the day and year first above written. 

(Signatures.) (Seals.) 
Signed, sealed, and delivered in presence of 



(100.) 

GENERAL CONTRACT FOR MECHANICS' WORK. 

Made this day of a.d. 18 by and 

between of of the first part, and of 

of the second part, 
Witnesseth, That the party of the first part, for the consideration 
hereinafter mentioned, covenants and agrees with the party of the second 
part to perform in a faithful and workmanlike manner the following speci- 
fied work, viz.: 

And, in addition to the above, to become responsible for all materials 
delivered and receipted for; the work to be commenced and to 

be completed and delivered, free from all mechanic or other Hens, on or 
before the day of And the party of the second 

part covenants and agrees with the party of the first part, in consideration 
of the faithful performance of the above specified work, to pay to the party 
of the first part the sum of dollars, as follows : 



A CITIZEN OF THE UNITED STATES. 431 

And it is further mutually agreed by and between both parties, that in 
case of disagreement in reference to the performance of said work, all 
questions of disagreement shall be referred to and the award 

of said referees, or a majority of them, shall be binding and final on all 
parties. 

In witness whereof, We hereunto set our hands and seals, on the 
day and year first above written. 

(Signatures.) (Seals.) 

Executed in presence of 



(101.) 

AN AGREEMENT FOR PURCHASE AND SALE OF LAND, IN USE 
IN THE MIDDLE STATES. 

Agreement, Made and concluded the day of 

a.d. 18 by and between of the State of of the 

first part, and of the State of of the second part: 

Whereas, The jparty of the second part hath agreed to purchase from 
the party of the first part, either on his own account or for whom it may 
concern, certain land in township county, 

and State of And it is agreed that the party of the second 

part shall have the right to divide and subdivide said land in such manner, 
and appropriate to his own use so much thereof, as he may see fit, giving 
and paying to the party of the first part the sum of dollars, on 

or before the day of a.d. 18 and reserving to 

his own use any amount for which the whole or any be sold over the said 
dollars. 

And these articles further witness, That the party of the first 
part, for and in consideration of the premises and the sum of 
lawful money, to him paid by the party of the second part, at and before 
the execution hereof, doth covenant, promise, grant, and agree with the 
party of the second part, his heirs and assigns, upon sale of said lands 
being made by the party of the first part, to sufficiently grant, convey, and 
assure said lands, with the appurtenances, to the said party of the second 
part, or such person or persons as he may direct; and in default of the 
said party of the second part paying the amount hereinbefore specified at 
the time mentioned, then these articles are to be deemed and considered 
cancelled to all intents and purposes, the same as though they never had 
been made. 

In witness whereof, The parties hereto have hereunto set their hands 
and seals, the day and year first aforesaid. 

(Signatures.) (Seals.) 

Sealed and delivered in presence of 



432 THE PROPERTY RIGHTS OF 



(102.) 

AN AGREEMENT FOR SALE OF LAND, IN USE IN THE WESTERN 

STATES. 

Articles of agreement, Made this day of in 

the year one thousand eight hundred and sixty- between 

of the first part, and of the second part, 

Witnesseth, That the party of the first part, at the request of the 
party of the second part, and in consideration of the money to be paid, and 
the covenants as herein expressed to be performed, by the party of the 
second part (the prompt performance of which payments and covenants 
being a condition precedent, and time being of the essence of said condi- 
tion) , hereby agree to sell to the said party of the second part, all 
certain lot and parcel of land, situate in county of 

and State of known and designated as follows, viz.: 

with the privileges and appurtenances thereto belonging. 

And the said party of the second part, in consideration of the premises, 
hereby agrees to pay the party of the first part, his or their executors, 
administrators, or assigns, in days, the sum of 

dollars, 
as follows, viz. : 

with interest at the rate of per cent per annum, from 

to be paid semi-annually in each year, on the whole sum from time to time 
remaining unpaid. And also that he will well and faithfully, in due season, 
pay, or cause to be paid, all ordinary taxes assessed for revenue purposes 
upon said premises, or any part thereof, subsequent to the year 18 And 
also all other assessments which now pre, or may be hereafter, charged or 
assessed upon or against said premises, or any part thereof. But in case 
the said party of the second part fail to pay any or all such taxes or assess- 
ments upon said premises or appurtenances, or any part thereof, whenever 
and as soon as the same shall become due and payable; and the party of 
the first part shall pay from time to time, or at any time, any or all such 
taxes or assessments, or cause the same to be paid, — the amount of any and 
all such payments so made by the party of the first part, with interest 
thereon from the date of payment, shall immediately thereupon become an 
additional consideration, and payment thereof shall be made by the party 
of the second part hereto, for the premises herein agreed to be conveyed. 

And the said party of the first part further covenants and agrees with 
the said party of the second part, that upon the faithful performance by 
said party of the second part of undertaking in his behalf, and 

of the payment of principal and interest of the sum above mentioned, in 
the manner specified, he the said party of the first part shall and will, 
without delay, well and faithfully execute, acknowledge, and deliver in 
person, or by attorney duly authorized, to the party of the second part, 
heirs or assigns, a deed of conveyance of all the right, title, and 
interest of the party of the first part, of, in, and to the above-described 



A CITIZEN OF THE UNITED STATES. 433 

premises, with the appurtenances, with full covenants of warranty, also of 
waiver and release of all rights of the said party of the first part, resulting 
from the laws of this State pertaining to the exemption of homesteads. 

And it is mutually covenanted and agreed, By and between the 
parties hereto, that in case default shall be made in the payments of prin- 
cipal or interest at the time or any of the times above specified, for the 
payment thereof, and for days thereafter, this agreement, and 

all the preceding provisions hereof, shall be null and void, and no longer 
binding, at the option of said party of the first part, representatives 

or assigns; and all the payments which shall then have been made thereon, 
or in pursuance hereof, absolutely and for ever forfeited to the said party 
of the first part; or at the election of the said party of the first part, 
.representatives and assigns, the covenants and liability of said party of the 
second part shall continue and remain obligatory upon the said party of 
the second part, and may be enforced, and the said consideration money, 
and every part thereof, with the annual interest as above specified, be col- 
lected, by proper proceedings in law or equity, from the said party of the 
second part, heirs, executors, administrators, or assigns. 

And it is further mutually covenanted and agreed, By and 
between the parties hereto, that in case of default in the payment stipulated 
to be made by the said party of the second part, or any part thereof, and 
the election of the party of the first part, representatives or 

assigns, to consider the foregoing contract of sale at an end, and prior 
payments forfeited, the said party of the second part, heirs, repre- 

sentatives, or assigns, who may have possession, or the right of possession, 
of said premises at the time of such default, or at any time thereafter, shall 
be considered, and are hereby agreed and declared to be, in law and equity, 
the tenant or tenants at will of said party of the first part, repre- 

sentatives and assigns, on a rent equal to an interest of ten per cent per 
annum on the whole sum of the purchase-money above specified, payable 
quarter-yearly in advance from the day of such default in payment of 
principal or interest. And after such default in payment, and election to 
consider the above contract of sale as void, the said party of the first part, 
representatives and assigns, shall and may have and exercise all 
the powers, rights, and remedies provided by law or equity to collect such 
rent, or to remove such tenant or tenants, the same as if the relation of 
landlord and tenant hereby declared were created by an original absolute 
lease for that purpose, on a special rent, payable quarterly on a tenure at 
will. And that in such case the said tenant or tenants shall and will pay, 
or cause to be paid, all taxes, assessments, ordinary and extraordinary, 
which may be laid or assessed on such premises or any part thereof, during 
the continuance of such tenancy; and will not permit or suffer any waste 
or damage to said premises or the appurtenances, but will keep and deliver 
up, on the termination of such tenancy, the said premises and appurte- 
nances, in as good order and repair (ordinary wear and decay, and unavoid- 
able injury by the elements, excepted) as they were in at the commencement 
of said tenancy. 

In witness whereof, The party of the first part and the 

party of the second part, in own proper person, have hereunto 



434 THE PROPERTY RIGHTS OF 



respectively set their hands and seals, on the day and year first above 
written. 

(Signatures.') (Seals.) 
Signed, sealed, and delivered in presence of 



(103.) 

AN AGREEMENT FOR WARRANTY DEED, USED IN THE WESTERN 

STATES. 

Articles of agreement, Made this day of in 

the year of our Lord one thousand eight hundred and sixty- between 

party of the first part, and party of the second 

part, 

Witnesseth, That said party of the first part hereby covenants and 
agrees, that if the party of the second part shall first make the payment 
and perform the covenants hereinafter mentioned on part to be 

made and performed, the said party of the first part will convey and assure 
to the party of the second part, in fee-simple, clear of all incumbrances 
whatever, by a good and sufficient warranty deed, the following lot, piece, 
or parcel of ground, viz. : 

And the said party of the second part hereby covenants and agrees to pay 
to said party of the first part the sum of dollars, in the manner 

following: dollars, cash in hand paid, the receipt whereof is 

hereby acknowledged, and the balance 

with interest at the rate of per centum per annum, payable 

annually, on the whole sum remaining from time to time 
unpaid, and to pay all taxes, assessments, or impositions that may be 
legally levied or imposed upon said land, subsequent to the year 18 
And in case of the failure of the said party of the second part to make 
either of the payments, or perform any of the "covenants on part 

hereby made and entered into, this contract shall, at the option of the 
party of the first part, be forfeited" and determined, and the party of the 
second part shall forfeit all payments made by on this contract, 

and such payments shall be retained by the said party of the first part in 
full satisfaction and in liquidation of all damages by sustained, 

and shall have the right to re-enter and take possession of the 

premises aforesaid. 

It is mutually agreed that all the covenants and agreements herein con- 
tained shall extend to and be obligatory upon the heirs, executors, admin- 
istrators, and assigns of the respective parties. 

In witness whereof, The parties to these presents have hereunto set 
their hands and seals, the day and year first above written. 

(Signatures.) (Seals.) 

Signed, sealed, and delivered in presence of 



A CITIZEN OF THE UNITED STATES. 435 



(104). 

A CONTRACT TO CONVEY REAL ESTATE, IN USE IN THE MIDDLE 

STATES. 

This article of agreement, Made and entered into the 
day of one thousand eight hundred and between 

of the first part, and of the second part, 

Witnesseth, as follows: The said party of the first part hereby 
agrees to sell unto the said party of the second part all that parcel of 
land situated, bounded, and described as follows. That is to say 

for the sum of 

to be paid by the said party of the second part, in manner and at the 

times hereinafter mentioned and covenanted, on the part of the said party 

of the second part. And the said party of the first part further agrees, 

that on the day of on receiving from the said party of the 

second part the sum of 

the said party of the first part shall and will, at at 

own proper cost and expense, execute and deliver to the said party of the 

second part, or to assigns, a proper deed of conveyance, duly 

acknowledged, for the conveying, and assuring to them the 

fee-simple of the said premises, free from all incumbrances, 

which deed of conveyance shall contain a general warranty, and the usual 
full covenants. 

And the said party of the second part hereby agrees to purchase of the 
said party of the first part the premises above mentioned, at and for the 
price and sum above mentioned, and to pay to the said party of the first 
part the purchase-money therefor, in manner and at the times following, 
to wit: 

And it is further agreed by and between the parties to these presents, 
that the said party of the first part shall have and retain the possession of 
said premises, and be entitled to the rents and profits thereof 
until the day of when full possession of the same shall 

be delivered to the said party of the second part, by the said party of the 
first part. 

And it is understood and agreed, that the stipulations aforesaid are to 
apply to and bind the heirs, executors, administrators, and assigns of the 
respective parties. 

And it is further hereby agreed, that in case the said party of the first 
part shall fail or refuse to execute and deliver a proper deed of conveyance 
in manner and at the time and place above specified for that purpose, pro- 
vided the party of the second part shall be ready to fulfil and perform the 
covenants then to be fulfilled on part; or in case the said party 

of the second part shall fail or refuse to pay the said sum of 

at the time and place as above agreed upon, provided the party of the first 



436 THE PROPERTY RIGHTS OF 

part shall be ready to deliver such deed of conveyance, as aforesaid, — then 
the party so failing shall and will pay to the other party, or 
assigns, the sum of dollars, which sum is hereby declared fixed 

and agreed upon, as the liquidated amount of damages to be paid by the 
party so failing as aforesaid, for non-performance. 

{Signatures.) (Seals.) 
Signed, sealed, and delivered in presence of 



(105.) 

AN AGREEMENT FOR THE PURCHASE OF AN ESTATE, IN USE IN 
NEW ENGLAND. 

Articles of agreement, Had, made, concluded, and agreed upon 
this day of a.d. between of 

of the one part, and of of the other part. 

First, the said (seller), in consideration of the sum of to him 

paid by the said (buyer) , at or before the sealing and delivery of these 
presents, and of the further sum of to be paid as hereinafter is 

mentioned, doth hereby for himself, his heirs, -executors, and administra- 
tors, and every of them, covenant, promise, and agree, to and with the 
said his heirs, executors, and administrators, and every of them, 

by these presents, that he the said his heirs and assigns (and all 

and every other person and persons whatsoever claiming or to claim any 
right, title, or interest under him, or any other person or persons whatso- 
ever, of, in, or to the lands and premises hereinafter mentioned) , 
shall and will, at the proper costs and charges of the said 
his heirs and assigns (except fees to counsel) , on or before the 
day of next ensuing, by such conveyances, assurances, ways, 
and means in the law, as he the said his heirs and assigns, or 
his or their counsel, shall reasonably devise, advise, or require, well and 
sufficiently grant, sell, release, convey, and assure to the said 
and his heirs, or to whom he or they shall appoint or direct, all that 

situate now in the tenure or occupation of 

or his assigns, with covenants to be therein contained, that the said prem- 
ises, at the time of such conveyance, are free from all incumbrances and 
demands whatsoever (except ) and all other usual and reason- 

able covenants. In consideration whereof, the said for himself, 

his heirs, executors, administrators, and assigns, doth hereby covenant, 
promise, and agree, to and with the said his heirs, executors, and 

administrators, by these presents, that he the said his heirs, exec- 

utors, or administrators, or some of them, shall and will well and truly 
pay, or cause to be paid, unto the said his heirs, executors, or 

administrators, the aforesaid sum of at the time of executing 

the said conveyances. And for the true performance of all and every the 
covenants and agreements aforesaid, each of the said parties to these pres- 
ents doth hereby bind himself, his heirs, executors, and administrators, to 
the other of them, his heirs, executors, administrators, and assigns, in the 
penal sum of 



A CITIZEN OF THE UNITED STATES. 437 

In witness whereof, The said parties to these presents have here- 
unto set their hands and seals, the day and year first above written. 

(Signatures.) (Seals.) 
Signed, sealed, and delivered in presence of 

An agreement for the sale of lands should always state the 
covenants, whether of general or special warranty, which it is 
intended that the contemplated conveyance shall contain. We give 
below some of the more common provisions which may be inserted 
in an agreement for the purchase of land. 



COVENANTS, PROVISOS, AND AGREEMENTS, WHICH MAT BE INSERTED IN THE 
PRECEDING FORM. 

1. Covenant that the vendor, before the purchase is completed, shall not commit waste, 
or grant any new leases. 

And also that the said (the seller) shall not nor will, in the mean time, 
cut down any timber or trees, or commit any waste or spoil whatsoever, in 
or upon the premises, or any part thereof, nor shall or will grant any new 
leases of the premises, or any part thereof, without the privity or consent 
of the said (the buyer), or his heirs or assigns. 

2. Another covenant, for -the payment of the purchase-money. 

And the said (the buyer) doth hereby covenant and agree to and with 
the said (the seller), his heirs, executors, and administrators, that upon 
sealing and executing such conveyance and assurance of the said 
unto him and them as aforesaid, according to the true intent of these pres- 
ents, he the said his heirs, executors, or administrators, shall 
and will pay, or cause to be paid, unto the said his heirs, exec- 
utors, or administrators, the said sum of in full for the pur- 
chase of the said premises. 

Or there may be an agreement to retain part of the purchase-money to pay 
off an incumbrance, as follows : — 

And it is agreed between the said parties that the said shall or 

may retain out of the said purchase-money the sum of for the 

purpose of paying off the sum of secured by a mortgage on the 

said premises, given by the said to bearing date 

when the said sum shall become due by virtue of the said mortgage. 

3. This agreement may be inserted. 

And it is agreed, that if the counsel of the said shall not 

approve of the title of the said to the said premises, this agree- 

ment shall be void. 

4. This proviso may be inserted. 

Provided always, and it is hereby mutually covenanted and agreed, by 
and between the parties to these presents, for themselves and their re- 
spective heirs, in manner as follows, viz. : That in case the counsel of the 



438 THE PROPERTY RIGHTS OF 

said (the buyer) shall not approve of the title of him the said (the seller) , to 
the said or in case (the buyer), on his view thereof (he not having 

ever viewed the same), will not proceed in the purchase thereof, and shall 
and do, within one month next after the date hereof, give notice, in writing, 
to the said (or to of ), that he will not purchase 

the said then and in either of the cases these presents shall 

be absolutely void; and that then he the said (the seller), his heirs, execu- 
tors, or administrators, shall and will, within six months now next ensu- 
ing, well and truly repay or cause to be repaid unto the said (the buyer), 
his heirs, executors, administrators, or assigns, the said sum of 
so by him now paid as aforesaid, together with legal interest for the same, 
from henceforth to be computed until payment thereof. 

5. A provision in articles of purchase, in case of the delay or default of either party. 

that if by reason of any delay, neglect, or default, by or on 
the part of the said (the purchaser), or his heirs, or his or their counsel or 
agents, the said conveyances of the said estates and premises shall not be 
ready and tendered to the said (the vendor), or his heirs, to be executed, 
on or before the said day of then and in such 

case the said his shall and will pay and allow to 

the said his interest for the said sum of 

at the rate of to be computed from the day of 

until the said (the principal sum) shall be paid as aforesaid; but if, by 
reason of any delay, neglect, or default, by or on the part of the said 
or any claiming under him, such conveyances as aforesaid shall 
not be executed on or before the said day of then and 

in such case no such interest as aforesaid shall be paid or allowed during 
the time of such delay of the said 



6. An agreement that if a good title, Sfc, cannot be made on, frc, the premises shall 
stand as security for the money paid down, fyc. 

It is hereby further agreed and declared by and between all the said 
parties to these presents, and particularly the said (the vendors) do hereby 
agree and declare, that in case they cannot make out a good title to, and 
execute and perfect such conveyances and assurances of, the premises as 
aforesaid, on or before the day of now next ensuing, 

then the said and every part thereof, shall remain and be a 

security to the said (the purchaser), for securing to him, his the 

repayment of the said sum of now by him paid as aforesaid, 

at or upon the said day of now next ensuing, together 

with interest for the 'same after the rate of from henceforth in 

the mean time and until payment thereof, which interest in such case they 
the said (the purchasers) do hereby for themselves, severally and respec- 
tively, and for their several and respective heirs, promise and 
agree to pay accordingly, and then, also, in such case all such rents, 
as he the said (the purchaser) shall have received, by or out 
of the premises as aforesaid, shall be deemed and allowed by him in part 
of payment of the same (the principal purchase-money) , and interest. 



A CITIZEN OF THE UNITED STATES. 439 

7. That if the other parties do not perform their covenants, the purchaser shall not 
be obliged to perform his. 

And it is mutually agreed and declared to be the true intent and mean- 
ing of these presents, that if it shall happen that any of them the said 
their heirs, shall neglect to perform iris or their 

parts of the covenants and agreements herein contained, that then, and in 
any such case, the said his heirs, executors, and administra- 

tors, or any of them, shall not be hereby obliged to perform his and their 
covenants herein contained, or any of them, but shall, if he shall think 
fit, be absolutely discharged from the same. 



(106.) 

AN AGREEMENT FOR THE SALE OF AN ESTATE BY PRIVATE 
CONTRACT. 

Articles of agreement, Made this day of 

between of and of 

The said agrees to sell the said all that 

with the appurtenances, for the sum of and will, on or before 

the day of next, on the receipt of the said sum of 

at the charges of the said execute a proper con- 

veyance thereof, with a covenant of general warranty and against incum- 
brances, to the said and his heirs and assigns. 

And the said agrees, that, on the execution of such con- 

veyance, he will pay the said sum of to the said or his 

assigns. 

And it is further agreed, that the conveyance shall be prepared by and 
at the expense of the said to the approbation of the respective 

counsel of the said and and that all taxes and 

outgoings in respect of the premises in the mean time shall be paid by the 
said And it is agreed, that the said shall receive 

the rents and profits of the premises, from next, to his proper 

use. And it is agreed, that if the said conveyance shall not be executed, 
and the purchase-money paid on or before the day of 

then the said shall pay interest for the same from the same day, 

unto the said after the rate of per cent per annum. 

In witness whereof, 



(Signatures.) (Seals.) 



(107.) 



AN AGREEMENT TO BE SIGNED BY AN AUCTIONEER, AFTER A SALE 

BY AUCTION. 

I hereby acknowledge, That - has been this day declared 

the highest bidder and purchaser of (describe the real estate), at the sum of 

and that he has paid into my hands the sum of as 



440 THE PROPERTY RIGHTS OF 

a deposit, and in part payment of the purchase-money; and I hereby agree 
that the vendor shall in all respects fulfil the conditions of sale. 1 
Witness my hand, 

(Signatures.) (Seals.) 

(108.) 

AN AGREEMENT TO BE SIGNED BY THE PURCHASER, AFTER A SALE 

BY AUCTION. 

I hereby acknowledge, That I have this day purchased by public 
auction all that (describe the estate) for the sum of and have paid 

into the hands of the sum of as a deposit and in 

part payment of the said purchase-money; and I hereby agree to pay the 
remaining sum of unto (the vendor), at . on or before 

the day of and in all other respects, on my part, to 

fulfil the annexed conditions of sale. 

Witness my hand, this day of 

(Signatures.) (Seals.) 

(109.) 

AN AGREEMENT TO MAKE AN ASSIGNMENT OF A LEASE. 

Whereas (the lessor) hath, by his deed indented, dated 
demised unto the said (the lessee) all that to have and to hold 

to him the said his (reciting the lease), as by the said deed 

indented more fully appears. Now the said for and in consid- 

eration of dollars, doth hereby for himself (his heirs, 8fc), cove- 

nant, that he the said before the day of 

shall and will, at the costs and charges of (the assignee) , his 
(heirs, #*c), by deed indented, assure, assign, and grant over to the said 

his (heirs, fyc), the said (the premises), and all his estate, 
right, title, and demand therein : To have and to hold to the said (the 
assignee), his (heirs, &fc), during the residue of the said term of years 
then to come, of, in, and to the same, by virtue of the said recited inden- 
ture, and under the rents, covenants, and agreements therein specified. 

(Signatures.) (Seals.) 

(110.) 

AN AGREEMENT FOR MAKING A QUANTITY OF MANUFACTURED 

ARTICLES. 

Articles of agreement, Between (the buyer) , of the one part, and 

of the other part. 
The said (the manufacturer), for the consideration hereinafter mentioned, 
doth covenant that he will, at his own charge, make for the said (describe 

1 It would be well to have the conditions of sale annexed, and refer to them by saying 
hereunto annexed. 



A CITIZEN OF THE UNITED STATES. 441 

the articles to be made), of the same quality of materials and goodness as, 

and in all other respects according to, a pattern agreed between the said 

parties, and deliver the same to the said at 

within months from the date hereof. And the said 

in consideration thereof, doth covenant to pay to the said at the 

rate of after months from the delivery of the said 

as aforesaid. And it is agreed, that if any of the said 
shall not be made agreeable to the said pattern, and for that reason shall 
be rejected by the said he the said shall take back 

such as shall so be refused, and deliver the said the like quantity 

of the goodness and make, according to the pattern aforesaid. 
In witness 

{Signatures.) {Seals.) 



(111.) 
AGREEMENT BETWEEN A TRADER AND A BOOK-KEEPER. 

Articles of agreement, Between (the trader), of and 

(the book-keeper), of The said agrees that he will, 

during the term of years from the date hereof, dwell with the 

said and faithfully keep the books of accounts of the said 

and diligently serve the said in such other business 

as the said shall direct, and shall therein perform the reasonable 

directions of the said without disclosing the same, or any of his 

correspondence, or the secrets of his employment or business, to any per- 
son whatsoever; and shall not correspond with any person corresponding 
with the said nor use any traffic or dealing for himself, or any 

other person, without the consent of the said in writing. And 

the said further covenants, that he will, during the said term, 

keep true and perfect accounts for the said and will not em- 

bezzle, waste, or destroy any of the goods, moneys, or effects of the said 
or any of his correspondents ; and also that he the said 
will, from time to time, during the said term, upon request, 
make and give unto the said his a just and perfect 

account in writing of all money which he the said shall receive 

and pay out, and of all goods and commodities which he shall, at any 
time during the said term, receive in or deliver out upon the account of the 
said or any of his correspondents, or by the order of the said 

And also that he the said his will pay 

to the said his all such sums of money as shall be 

due upon the foot of every such account. And also that he the said 
will not deliver forth upon credit any of the goods, merchan- 
dise, or moneys of the said or any of his correspondents, to 
any person or persons whatsoever, without the express consent of the 
said 

And the said (the trader), for himself (and his heirs, fyc), covenants that 
he will pay to the said (the book-keeper) , in consideration of the said ser- 



442 THE PROPERTY RIGHTS OF 

vices, the yearly sum of in equal payments on the days following, 

viz., on and will, during the said term, provide for the said 

sufficient and suitable meat, drink, washing, and lodging. 
In witness 

{Signatures.) {Seals.) 



(112.) 

AGREEMENT FOR DAMAGES IN LAYING OUT OR ALTERING A ROAD. 

Whereas, A road was laid out on the day of a.d. 

186 by and commissioners of highways of the 

town of in the county of and State of 

on the application of the requisite number of legal voters residing within 
three miles of said road, as follows : Commencing 

which road passes through the land of being known and described 

as follows, viz. : 

Now, therefore, it is hereby agreed between the said commissioners and 
the said that the damages sustained by the said by 

reason of the laying out and opening said road upon his land, hereinbefore 
described, be liquidated and agreed upon at dollars. 

In witness whereof, The said commissioners and the said 
have hereunto subscribed their names, this day of 

a.d. 186 

{Signatures.) Commissioners of Highways 



(113.) 

AN AGREEMENT BETWEEN A PERSON WHO IS RETIRING FROM THE 
ACTIVE PART OF A BUSINESS, AND ANOTHER WHO IS TO CONDUCT 
THE SAME FOR THEIR MUTUAL BENEFIT. 

Articles of agreement. Made, entered into, and concluded upon, 
this day of a.d. between of 

of the one part, and of of the other part : Whereas 

the said hath conducted and managed for some time past the 

trade or business of the said and in consideration of the atten- 

tion and assiduity of the said thereunto, the said 

is willing to continue the said in the management thereof, undei 

the covenants, restrictions, and agreements hereinafter contained; and in 
consequence thereof, an inventory and appraisement hath been made and 
taken of the stock, and entered in two receipt-books, one of which is to 
remain in the custody of each of them, the said parties to these presents, 
and is subscribed by both of them, and the value of the said stock in the 
whole appears to the amount of the sum of Now these presents 

witness, that for and in consideration of the covenants and agreements 



A CITIZEN OF THE UNITED STATES. 443 

hereinafter contained on the part of the said to be performed, 

the said for himself, his executors and administrators, doth 

hereby covenant, promise, and agree, to and with the said 
that it shall and may be lawful to and for the said from time 

to time, during the term of eleven years, to be computed from the day of 
the date of these presents, if they the said and shall 

jointly so long live, to trade with the said stock, and to manage and 
improve the same, in such manner as to the said under the 

direction of the said shall seem meet; upon trust, nevertheless, 

and to the intent and purpose that the said shall and do, by 

and out of the money which shall arise by sale of any part or parts of the 
said stock, buy such goods as shall be requisite to keep up and continue 
the present quality and value thereof, and by and out of the profits which 
shall arise from the trade and dealing, in the first place yearly and every 
year, pay the whole rent of the said house and shop, and pay and discharge 
all taxes which now are, or shall hereafter be, assessed or imposed on him 
the said or the said on account of the said house 

and trade; and in the next place, to pay to him the said or his 

assigns, yearly and every year during the said term of eleven years, if 
they the said and shall so long live, one clear annuity 

or yearly sum of by equal half-yearly payments, on the 

day of and the day of without any deduction 

or abatement whatsoever, and subject thereto, to retain the residue and 
overplus of the profits which shall arise from his trade and dealing, to and 
for his own sole use and benefit, as a recompense and satisfaction for his 
care and trouble in the sale and management of the said stock. And the 
said in consideration of the premises, and of the covenant and 

agreement hereinbefore on the part of the said contained, doth 

for himself, his executors and administrators, covenant, declare, and 
agree that he the said shall and will, from time to time, and 

at all times, for and during the said term of eleven years, if they the said 
and shall so long jointly live, diligently apply 

himself to the care and management of the said stock, trade, and business, 
according to his best skill, abilities, and discretion, and apply and dispose 
of the money which shall arise from the sale thereof, and all the profits of 
his trade and dealings, to answer and discharge the trusts hereby reposed 
in him, in such manner as hereinbefore is directed, declared, or expressed. 
And also shall and will write true and perfect entries, in proper books of 
accounts, of all such goods as shall be sold, and of all moneys which shall 
be paid and received by him, and permit the same, from time to time, to 
be inspected by him the said or such other person or persons 

as he shall appoint. And further, that he the said shall not 

nor will, at any time during the continuance of the said term of eleven 
years, buy or sell, or in any wise trade or deal in his own name, but in 
the name only of him the said upon the trusts aforesaid; nor 

do any act whatsoever, whereby the said stock, or any part thereof, may 
be attached, or taken in execution. And also that at Christmas next, and 
so at every succeeding Christmas during the said term of eleven years 
or oftener, if thereto required by the said he the said 



444 THE PROPERTY RIGHTS OF 

shall and will take a full account in writing of the said stock, 
then remaining in the said trade, and of the profits thereof, and deliver 
the same to the said in order to manifest to him a true state 

thereof, and of his proceedings in the trade by him carried on therewith. 
And at the expiration, or other sooner determination, of the said term of 
eleven years, he the said his executors or administrators, shall 

and will deliver up to him the said his executors or administra- 

tors, the stock then remaining, for his or their own use and benefit, to the 
value of the sum of losses by bad debts', decay of goods, and 

other inevitable casualties excepted. 

Witness our hands and seals, this day of in 

the year 18 



Tn presence of 

(114.) 



(Signatures.) {Seals.) 



day of 


one 


by and between 


of 


and of 


in the 



A BRIEF BUILDING CONTRACT. 

Contract for building made this 
thousand eight hundred and 

in the county of 
county of builder . 

The said covenant and agrees to and with the said 

to make, erect, build, and finish, in a good, substantial, and workmanlike 
manner, upon situate said to 

be built agreeable to the draught, plans, explanations, or specifications, 
furnished or to be furnished to said by of good 

and substantial materials ; and to be finished complete on or before the 
day of And said covenant and agrees 

to pay to said for the same dollars, as follows: 

Security against mechanics' or other lien is to be furnished by said 
prior to payment by said 

And for the performance of all and every the articles and agreements 
above mentioned, the said and do hereby bind 

themselves, their heirs, executors, and administrators, each to the other, 
in the penal sum of dollars, firmly by these presents. 

In witness whereof, We, the said and have 

hereunto set our hands, the day and year first above written. 

(Signatures.) (Seals.) 

Executed and delivered in presence of 

Contracts for building are among those frequently made, and 
also among those which require the utmost care. A specification, 
stating and describing all the things which the parties desire and 
intend to have done, should always accompany the contract ; and 
it may be difficult for persons not accustomed to the work to re- 
member and specify, and properly describe, all the things they 



A CITIZEN OF TEE UNITED STATES. 445 

propose to have in the building; but all these things should be 
accurately and precisely stated in the specification, as far as possi- 
ble ; for from omissions or errors of this kind, cases and questions 
are constantly arising. 



CHAPTER XIII. 

ASSIGNMENTS. 

The word " assign" usually occurs in almost all forms of transfer 
ancf conveyance; but there are certain instruments to which the 
name of "assignment" is more particularly given. They are instru- 
ments by which other instruments or debts or obligations, as bonds, 
judgments, wages, and the like, are transferred. Sometimes they 
are written on the backs of, or elsewhere on the same paper with, 
the instruments to be transferred by the assignment. Some of these, 
as assignments of deeds of grant and conveyance, of mortgages, of 
leases, will be given in the chapters which treat of those topics. 
Here are given such forms as will enable one to make an assignment 
for any of the purposes for which assignments are usually made. 

FORMS ANNEXED TO THIS CHAPTER. 

(115.) A brief form of an assignment, to be indorsed on a note, or any 

similar promise or agreement. 
(116.) A general assignment, with a power of attorney. 
(117.) An assignment of a bond. 
(118.) An assignment of a bond, with a power of attorney, and a 

covenant. 
(119.) An assignment of a judgment, in the form of an indenture. 
(120.) An assignment of wages, with a power of attorney. 



(115.) 

BRIEF FORM OF AN ASSIGNMENT, TO BE INDORSED ON A NOTE, 
OR ANY SIMILAR PROMISE OR AGREEMENT. 

I hereby, for value received, assign and transfer the within written 
(ar the above written) together with all my interest in, and all 

my rights under, the same, to (name of the assignee). 

{Signature > 



446 THE PROPERTY RIGHTS OF 

(116.) 
A GENERAL ASSIGNMENT, WITH POWER OF ATTORNEi.. 

Know all men by these presents, That I for value 

received, have sold, and by these presents do grant, assign, and convey 
unto (name of the assignee and description of the things assigned). 

To have and to hold the same unto the said executors, 

administrators, and assigns, for ever, to and for the use of 
hereby constituting and appointing my true and lawful attorney, 

irrevocable in my name, place, and stead, for the purposes aforesaid, to 
ask, demand, sue for, attach, levy, recover, and receive all such sum and 
sums of money which now are or may hereafter become due, owing, and 
payable for, or on account of, all or any of the accounts, dues, debts, 
and demands above assigned giving and granting unto the said 

attorney full power and authority to do and perform all and every act and 
thing whatsoever requisite and necessary, as fully, to all intents and pur- 
poses, as might or could do, if personally present, with full power 
of substitution and revocation, hereby ratifying and confirming all that the 
said attorney or substitute shall lawfully do or cause to be done by 
virtue hereof. 

In witness whereof, I have hereunto set my hand and seal, the 
day of one thousand eight hundred and 

(Signature.) (Seal.) 

Executed and delivered in the presence of 



(117.) 

ASSIGNMENT OF A BOND. 

Know all men by these presents, That in the here- 

unto annexed obligation named, for and in consideration of the sum of 

lawful money of the United States of America, unto 
well and truly paid by at the time of the execution hereof, the 

receipt whereof hereby acknowledge, have assigned, transferred, 

and set over, and by these presents do assign, transfer, and set over unto 
the said (assignee), his executors, administrators, and assigns, to and for 
his and their only proper use and behoof, the said hereunto annexed obli 
gation, which is given and executed by to bearing 

date the day of Anno Domini 18 to secure the 

payment of the sum of with lawful interest therein expressed, 

and all moneys, both principal and interest, thereon due and payable, or 
hereafter to grow due and payable, with the warrant of attorney to the 
said obligation annexed; together with all rights, remedies, incidents, and 
appurtenances whatsoever thereunto belonging or in any wise apper- 
taining, and all right, title, and interest therein. 



A CITIZEN OF THE UNITED STATES. 447 

In witness whereof, the said have hereunto set 

hand and seal this day of Anno Domini 



(Signature.) (Seal.) 



one thousand eight hundred and 

Sealed and delivered in the presence of us, 

(118.) 

ASSIGNMENT OF A BOND, WITH POWER OF ATTORNEY, AND A 
COVENANT. 

Know all men by these presents, That of the first 

part, for and in consideration of the sum of lawful money of 

the United States of America, to in hand paid by 

of the second part, at or before the ensealing and delivery of these presents, 
the receipt whereof is hereby acknowledged, ha bargained, sold, and 
assigned, and by these presents do bargain, sell, and assign, unto the 
said party of the second part, executors, administrators, and assigns, 

a certain written bond or obligation, and conditions thereof, bearing date 
the day of one thousand eight hundred and 

executed by 

and all sum and sums of money due and to grow due thereon; and the 
said party of the first part do covenant with the said party of the second 
part, that there is now due on the said bond or obligation, according to 
the conditions thereof, for principal and interest, the sum of 
and do hereby authorize the said party of the second part, in 
name to ask, demand, sue for, recover, receive, and enjoy the money due 
and that may grow due thereon as aforesaid. 

In witness whereof, have hereunto set hand and 

seal the day of one thousand eight hundred 

and 

(Signature.) (Seal.) 

Sealed and delivered in the presence of 



(119.) 
ASSIGNMENT OF A JUDGMENT, IN THE FORM OF AN INDENTURE. 

This indenture, Made the day of one thousand 

eight hundred and between (assignor) , of the first part, and 

(assignee) , of the second part. 

Whereas, The said part of the first part one thousand 

eight hundred and recovered by judgment in the 

(name of court), against one the sum of 

Now this indenture witnesseth, That the said part of the first 
part, in consideration of to duly paid, ha sold, and 

by these presents do assign, transfer, and set over unto the said part of 
the second part, and assigns, the said judgment, and all sum 

and sums of money that may be had or obtained by means thereof, or on 



448 THE PROPERTY RIGHTS OF 

any proceedings to be had thereupon. And the said part of the first 
part do hereby constitute and appoint the said part of the second part, 
and assigns, true and lawful attorney, irrevocable, with power 

of substitution and revocation for the use, and at the proper costs and 
charges of the said part of the second part, to ask, demand, and receive, 
and to sue out executions, and take all lawful ways for the recovery of the 
money due or to become due on the said judgment; and on payment to 
acknowledge satisfaction or discharge the same. And attorneys one or 
more under for the purpose aforesaid, to make and substitute, 

and at pleasure to revoke ; hereby ratifying and confirming all that 
said attorney or substitute shall lawfully do in the premises. And the said 
part of the first part do covenant that there is now due on the said 
judgment the sum of and that will not collect or 

receive the same, or any part thereof, nor release or discharge the said 
judgment, but will own and allow all lawful proceeding's therein, the said 
part of the second part saving the said part of the first part harmless 
of and from any costs in the premises. 

In testimony whereof, The part of the first part ha hereunto 
set hand and seal the day and year first above written. 

(Signatures.) (Seals.) 
Sealed and delivered in the presence of 



(120.) 
ASSIGNMENT OF WAGES, WITH POWER OF ATTORNEY. 

Know all men by these presents, That I of 

in the county of in consideration of to me paid by 

of the receipt whereof I do hereby acknowledge, 

do hereby assign and transfer to said all claims and demands 

which I now have, and all which, at any time between the date hereof and 
the day of next, I may and shall have, against 

for all sums of money due, and for all sums of money and demand which, 
at any time between the date hereof and the said day of 

next, may and shall become due to me, for services as To have 

and to hold the same to the said his executors, administrators, 

and assigns, for ever. 

And I do hereby constitute and appoint the said 

and his assigns to be my attorney irrevocable in the premises, to do and 
perform all acts, matters, and things touching the premises, in the like 
manner to all intents and purposes as I could if personally present. 

In witness whereof, I have set my hand and seal, this day 

of 18 

(Signature.) (Seal.) 

Signed, sealed, and delivered in presence of 



A CITIZEN OF THE UNITED STATES. 449 



CHAPTER XIV. 
BONDS. 

A "bargain where both parties make promises, and come under 

obligations, each to the other, may be made without seal, and would 
then be called an agreement. If made under seal, it would gener- 
ally be in the form of, and bear the name of, an indenture. If a 
promise by one only is made in writing, without a seal, it is a 
simple promise ; but if it be made with a seal, then it would gener- 
ally be in the form of, and bear the name of, a bond. 

The essentials of a bond, beside the seal, are only that one 
party should acknowledge himself "held, bound, and obliged" unto 
another party, to pay to him a sum of money ; and neither of the 
words "held" or "bound" or "obliged" are strictly necessary, 
although usual and proper : other words of the same meaning will 
have the same effect. In such a bond, the party bound is called the 
obligor, and the party to whom he is bound is called the obligee. 
The sum for which the obligor is bound is called the penal sum, or 
the penalty. Such a bond is simply an obligation to pay so much 
money. But a bond is not often given only for this purpose. It is 
usually intended to be, in fact, an obligation to do something else, 
on the penalty of paying so much money if it be not done. This 
something else may be any thing whatever which the obligor may 
contract to do. All this is contained in an addition, which is writ- 
ten on the same paper immediately after the bond itself; that is, 
after the words of obligation. And this is called the " condition " 
of the bond. It begins with saying, " This bond is on the condition 
following ; " or, " The condition of this bond (or obligation) is such 
(or as follows)," and then recites the things which the obligor has 
undertaken to do ; and then adds, that if all these things are fully 
done and performed, then the bond shall be void and of no effect, 
and otherwise shall remain in full force. 

The meaning and effect of all this is, that if the obligor fails, in 
any respect, to do what the condition recites, then he is bound to 
pay the money he acknowledges himself, in the bond, bound to pay. 
But now the law comes in to mitigate the severity of this contract. 
And whatever be the sum which the obligor acknowledges himself, 
in the bond, bound to pay, he is held by the courts to pay to the 
obligee only that amount which will be a complete indemnification 

29 



450 THE PROPERTY RIGHTS OF 

to him for the damage he has sustained by the failure of the obligor 
to do what the condition recites. 

For example ; suppose A B makes a bond to C D, acknowledg- 
ing himself bound to C D in the sum of ten thousand dollars. The 
condition recites that one E F has been hired by C D as his clerk, 
and that A B guarantees the good conduct of E F ; and if E F 
does all his duty honestly and faithfully, then the bond is void, and 
otherwise remains in full force. Then suppose E F cheats C D 
out of some money. A B is sued on the bond ; C D cannot recover 
from him, in any event, more than the ten thousand dollars ; and he 
will in fact recover from him only so much of this as will make 
good to C D all the loss he has sustained by E F's misconduct. 
As the obligee can recover from the obligor only actual compen- 
sation for what he loses, it is usual, in practice, to make the 
penal sum in the bond large enough to cover all the loss that 
can happen, or as much as the obligor is willing to be responsible 
for. 

There need be no "consideration" alleged or asserted in the 
bond, or proved, because, in the language of the law, the seal is 
(or implies) a consideration. 

The following forms are those of bonds frequently given ; and 
it will be easy to frame from some one of them any bond that is 
wanted for other purposes. 

FORMS ANNEXED TO THIS CHAPTER. 

(121.) A simple bond, without condition. 

(122.) A bond for payment of money, with a condition to that effect, 
with a power of attorney to confess judgment annexed. 

(123.) A bond for conveyance of a parcel of land. 

(124.) A bond for a deed of land, with acknowledgment before a notary 
public. 

(125.) A bond in another form, for conveyance of land, with acknowl- 
edgment. 

(126.) A bond to a corporation for payment of money due for contribu- 
tion to capital stock, with a power of attorney to confess 
judgment. 

(121.) 

A SIMPLE BOND, WITHOUT CONDITION. 

Know all men by these presents, That I (the obligor), am held and 
firmly bound unto (the obligee) , in the sum of lawful money of 

the United States of America, to be paid to the said or his cer- 



A CITIZEN OF THE UNITED STATES. 451 

tain attorney, or assigns : to which payment well and truly to be 

made, I bind myself, my heirs, executors, and administrators, 
firmly by these presents. Sealed with my seal. Dated the day of 

in the year of our Lord one thousand eight hundred and 

In testimony whereof, I have set my hand and seal to 

this instrument, on the day of in the year of our 

Lord eighteen hundred and 

(Witnesses). 
Executed and delivered in presence of 



(Signature.) (Seal.) 



(122.) 

BOND FOR PAYMENT OF MONEY, WITH A CONDITION TO THAT EFFECT, 
WITH POWER OF ATTORNEY TO CONFESS JUDGMENT ANNEXED 

Know all men by these presents, That held and firmly 

bound unto in the sum of lawful money of the 

United States of America, to be paid to the said or his certain 

attorney, executors, administrators, or assigns: to which payment well and 
truly to be made, heirs, executors, and administrators, 

firmly by these presents. Sealed with seal . Dated the day 

of in the year of our Lord one thousand eight hundred and 

The condition of this obligation is such, That if the above 
bounden heirs, executors, administrators, or any of them, 

shall and do well and truly pay, or cause to be paid, unto the above- 
named certain attorney, executors, administrators, or assigns, 
the just sum of dollars, 

without any fraud or further delay, then the above obligation to be void 
or else to be and remain in full force and virtue. 

(Signature.) (Seal.) 

Sealed and delivered in the presence of 

To Esq., Attorney of the Court of Common Pleas, at 

in the county of in the State of or to any other attorney 

of the said court, or of any other court, there or elsewhere. 

Whereas (the obligor), in and by a certain obligation, bearing even date 
herewith, do stand bound unto (the obligee), in the sum of 
lawful money of the United States of America, conditioned for the pay- 
ment of 

These are to desire and authorize you, or any of you, to appear for 
heirs, executors, or administrators, in the said court or else- 
where, in an action of debt, there or elsewhere brought or to be brought 
against me, or my heirs, executors, or administrators, at the suit of 
the said (the obligee), executors, administrators, or assigns, on the said 
obligation, as of any term or time past, present, or any other subsequent 



452 THE PROPERTY RIGHTS OF 

term or time there or elsewhere to be held, and confess judgment there- 
upon against me, or my heirs, executors, or administrators, for the 
sum of lawful money of the United States of America, debt, 

besides costs of suit, in such manner as to you shall seem meet: and for 
your, or any of your so doing, this shall be your sufficient warrant. And 
I do hereby for myself, and for my heirs, executors, and administrators, 
remise, release, and for ever quitclaim unto the said {the obligee), or his 
certain attorney, executors, administrators, and assigns, all and all man- 
ner of error and errors, misprisions, misentries, defects, and imperfections 
whatever, in the entering of the said judgment, or any process or proceed- 
ings thereon or thereto, or anywise touching or concerning the same. 

In witness whereof, have hereunto set hand 

and seal , the day of in the year of our Lord one 

thousand eight hundred and 

{Signature.) {Seal.) 

Sealed and delivered in the presence of 



(123.) 
BOND FOR CONVEYANCE OF A PARCEL OF LAND. 

Know all men by these presents, That we, as principals, 

and as sureties, are holden and stand firmly bound unto 

in the sum of dollars, to the payment of which to the said 

or executors, administrators, or assigns, we hereby jointly and 

severally bind ourselves, our heirs, executors, and administrators. 

. The condition of this obligation is such, that whereas the said obligors 
have agreed to sell and convey unto the said obligee a certain parcel of real 
estate, situated and bounded as follows, namely : 

The same to be conveyed by a good and sufficient {warranty or other) deed 
of the said obligors, conveying a good and clear title to the same, free 
from all incumbrances. 

And whereas, for such deed and conveyance it is agreed that the said 
obligee shall pay the sum of dollars, of which 

dollars are to be paid in cash upon the delivery of said deed, and the 
remainder by the note of the said obligee, bearing interest at 

per cent per annum, payable semi-annually, and secured by a 
mortgage in the usual form upon the said premises, such note 
to be {describe the note). 

Now, therefore, if the said obligors shall upon tender by the said 
obligee of the aforesaid cash, note , and mortgage at any time within 
from this date, deliver unto the said obligee a good and suffi- 
cient deed as aforesaid, then this obligation shall be void, otherwise it shall 
be and remain in full force and virtue. 

In witness whereof, We hereunto set our hands and seals, this 

day of a.d. 18 

Signed and sealed in presence of 



A CITIZEN OF THE UNITED STATES. 453 



(124.) 

BOND FOR A DEED OF LAND, WITH ACKNOWLEDGMENT BEFORE 
NOTARY PUBLIC. 

Know all men by these presents, That of the county 

of and State of held and firmly bound to 

of in the sura of dollars, to be paid to said 

his executors, administrators, or assigns, to the payment whereof 
bind sel heirs, executors, and administrators, firmly by 

these presents. .Sealed with seal, and dated the day of 

a.d. 186 
The condition of this obligation is, That if the said 

upon payment of dollars, and interest, by said 

within years from this date, agreeably to 

note of even date herewith, shall convey to said and 

heirs, for ever, a certain tract of land, situated inthecountv 
of and State of to wit: 

by a deed in common form duly executed and acknowledged, 

and in the mean time shall permit said to occupy and improve 

said premises for own use, then this obligation shall be void, 

otherwise to remain in full force and effect. 

In testimony whereof, have hereunto set 

hand and seal the day and year first above written. 

{Signature.) {Seal) 

State of ^ 

J- S3. 

County of ) 

Be it remembered, That on this day of eigh- 

teen hundred and before me, the undersigned, notary public in 

and for said county and State, duly commissioned and qualified, came 

who to be the same person whose name 

subscribed to the foregoing instrument of writing, as party thereto, and 
acknowledged the same to be act and deed for the 

purpose therein mentioned. 

In testimony whereof, I have hereunto set my hand and affixed my 
official seal, at my office in the city of the day and year last 

aforesaid. 

Notary Public. 

(125.) 

BOND IN ANOTHER FORM, FOR CONVEYANCE OF LAND, WITH 
ACKNOWLEDGMENT. 

Know all men by these presents, That of 

in the county of and State of held and firmly bound 

unto of " in the county of and State of 

in the penal sum of dollars, for the payment of 



454 THE PROPERTY RIGHTS OF 

which sum, well and truly to be made to heirs, executors, and 

administrators, I bind myself, my heirs, executors, and administrators, 

firmly by these presents. 

Sealed with my seal, and dated this day of a.d. 18 - 

The condition of the above obligation is such, That whereas 

the said this day has given the said promissory note 

of even date herewith, promising to pay to the said 

Now, if, on payment of the said note being made on or before the 
time shall become due, and all taxes on the land 

hereinafter described having been paid by the said and no right 

of pre-emption having been established or claimed on the said land, or 
any part thereof, the said or his legal representatives shall, 

whenever thereunto afterwards requested, execute and deliver to the said 
or legal representatives, a good and sufficient deed, 

conveying to the (here describe the land), free and clear of all 

incumbrance then this obligation to be null and void, otherwise 

of full force and effect; it being distinctly understood and agreed by and 
between the parties hereto that the time of payment herein above fixed 
material and of the essence of this contract, and that in case 
of failure therein the intervention of equity is for ever barred. 

(Signatures.) (Seals.) 

Signed, sealed, and delivered in presence of 

State of "> 

j-ss. 
County of ) 

I, in and for the said county, in the State aforesaid, do 

hereby certify that personally known to me as the same person 

whose name subscribed to the above bond for deed, appeared 

before me this day in person, and acknowledged that he signed, sealed, and 
delivered the said bond as free and voluntary act, and for the 

use and purpose therein set forth. 

Given under my hand and seal, this day of 

a.d. 18 

Notary Public. 

(126.) 

BOND TO CORPORATION FOR PAYMENT OF MONEY DUE FOR CONTRI- 
BUTION TO CAPITAL STOCK, WITH POWER OF ATTORNEY TO CON- 
FESS JUDGMENT. 

Know all men by these presents, That held and firmly 

bound unto (name of the corporation) in the sum of lawful money 

of the United States of America, to be paid to aforesaid, their 

certain attorney, successors, or assigns. To which payment well and truly 
to be made, firmly by these presents. Sealed with 

seal . Dated the day of in the year of our Lord 

one thousand eight hundred and 



a CITIZEN OF THE UNITED STATES. 455 

The condition of this obligation is such, That if the above 
bounden heirs, executors, and administrators, or any of them, 

shall and do well and truly pay, or cause to be paid, unto the above-named 
their certain attorney, successors, or assigns, the just sum of 
such as abovesaid, at any time within years from 

the date hereof, together with lawful interest for the same, in like money, 
payable monthly, on the of each and every month hereafter, 

and shall also well and truly pay, or cause to be paid, unto 
aforesaid, their successors or assigns, the sum of dollars, on 

the said of each and every month hereafter, as and for the 

monthly contribution on share of the capital stock of 

aforesaid, now owned by the said without any 

fraud or further delay; provided, however, and it is hereby expressly 
agreed, that if at any time default shall be made in the payment of the 
said principal money when due, or of the said interest, or the monthly con- 
tribution on said stock, for the space of after any payment 
thereof shall fall due, then and in such case the whole princi- 
pal debt aforesaid shall, at the option of aforesaid, their suc- 
cessors and assigns, immediately thereupon become due, payable, and 
recoverable, and payment of said principal sum and all interest thereon, 
as well as any contribution on said share of stock, then due, 
may be enforced and recovered at once, any thing hereinbefore contained 
to the contrary thereof notwithstanding. And the said for 
heirs, executors, administrators, and assigns, hereby expressly 
waive and relinquish unto aforesaid, their successors and 
assigns, all benefit that may accrue to by virtue of any and 
every law, made or to be made, to exempt the premises described in the 
indenture of mortgage herewith given, or of any other premises whatever, 
from levy and sale under execution, or any part of the proceeds arising 
from the sale thereof, from the payment of the moneys hereby secured, or 
any part thereof, then the above obligation to be void, or else to be and 
remain in full force and virtue. 

(Signatures.) (Seals.) 

Executed and delivered in presence of 



To Esquire, Attorney of the Court of Common Pleas at in 

the county of in the State of or to any other attorney, or 

to the prothonotary of the said court, or of any other court, there or elsewhere. 

Whereas, in and by a certain obligation, bearing even 

date herewith, do stand bound unto in the sum of 

lawful money of the United States of America, conditioned for the pay- 
ment of the just sum of such as abovesaid, at any time within 
years from the date thereof, together with lawful interest for 
the same in like money, payable monthly, on the of each and 
every month thereafter, and should also well and truly pay or cause to be 
paid unto aforesaid, their successors or assigns, the sum of 
dollars, on the of each and every month there- 



456 THE PROPERTY RIGHTS OF 

after, as and for the monthly contribution on share of the 

capital stock of aforesaid, now owned by the said 

without any fraud or further delay ; provided, however, and it is thereby 
expressly agreed, that if at any time default should be made in the pay- 
ment of the said principal money when due, or of the said interest, or the 
monthly contribution on said stock, for the space of after any 

payment thereof should fall due, then and in such case the 

whole principal debt aforesaid should, at the option of 
aforesaid, their successors and assigns, immediately thereupon become due, 
payable, and recoverable, and payment of said principal sum, and all inter- 
est thereon, as well as any contribution on said share of 
stock then due, might be enforced and recovered at once, any thing there- 
inbefore contained to the contrary thereof notwithstanding. And the 
said heirs, executors, administrators, and assigns, thereby 
expressly waive and relinquish unto aforesaid, their successors 
and assigns, all benefit that might accrue to by virtue of any 
and every law made or to be made to exempt the premises described in the 
indenture of mortgage therewith given, or of any other premises whatever, 
from levy and sale under execution, or any part of the proceeds arising 
from the sale thereof, from the payment of the moneys thereby secured, or 
any part thereof. These are to desire and authorize you, or any of you, to 
appear for heirs, executors, or administrators, in the said court 
or elsewhere, in an action of debt, there or elsewhere brought or to be 
brought, against heirs, executors, or administrators, at the suit 
of aforesaid, their successors or assigns, on the said obligation, 
as of any term or time past, present, or any other subsequent term or time, 
there or elsewhere to be held, and confess or enter judgment thereupon 
against heirs, executors, or administrators, for the sum of 
lawful money of the United States of America, debt, besides 
costs of suit, in such manner as to you shall seem meet; and for your or 
any of your so doing this shall be your sufficient warrant. And 
heirs, executors, and administrators, remise, release, and for ever quitclaim 
unto aforesaid, their certain attorney, successors, and assigns, 
all and all manner of error and errors, misprisions, misentries, defects, 
and imperfections whatever, in the entering of the said judgment, or any 
process or proceedings thereon or thereto, or anywise touching or con- 
cerning the same. 

In witness whereof, have hereunto set 

hand and seal the day of in the year of our Lord 

one thousand eight hundred and 

{Signatures.) (Seals.) 

Sealed and delivered in presence of 



A CITIZEN OF THE UNITED STATES. 457 



CHAPTER XV. 

GUAEANTY. 

SECTION I. 
OF THE RIGHTS AND DUTIES OF A GUARANTOR, 

A guarantor is one who is bound to another for the fulfilment 

of a promise, or of an engagement, made by a third party. This 
kind of contract is very common. Generally, it is not negotiable ; 
that is, not transferable so as to be enforced by the transferee as if 
it had been given to him by the guarantor. No special form or 
words are necessai-y to the contract of guaranty ; and if the word 
"guarantee" be used, and the whole instrument contains all the 
characteristics of a note of hand, payable to order or bearer, then 
it is negotiable. Thus, in a case in New York, the instrument was 
as follows: "For and in consideration of thirty-one dollars and fifty 
cents received of B. F. Spencer, I hereby guarantee the payment 
and collection of the within note to him or bearer. Auburn, Sept. 
25, 1837. (Signed) Thomas Burns." And it was held negotiable. 
What negotiable means will be more fully explained in the chapter 
on Notes of Hand and Bills of Exchange. 

The guaranty may be enforced, although the original debt can- 
not ; as, for example, the guaranty of the promise of a wife or an 
infant; and sometimes the guaranty of a debt is requested, and 
given, for the very reason that the debt is not enforceable at law. 
But, generally, the liability of the principal measures and limits the 
liability of the guarantor. And if the creditor agrees with the prin- 
cipal debtor that the debt shall be reduced or lessened in a certain 
proportion, the obligation of the guarantor is reduced by law in an 
equal proportion. 

A contract of guaranty is construed somewhat strictly. Thus, a 
guaranty of the notes of one does not extend to notes which he 
gives jointly with another. 

A guarantor who pays the debt of the principal may demand 
from his creditor the securities he holds, although not an assign- 
ment of the debt itself or of the note or bond which declares the 
debt, for that is paid and discharged. And the creditor should not 
be permitted to resort to the guarantor, until he has collected as 
much as he can from these securities, or offers to transfer them to 
the guarantor. 

Unless the guaranty is by a sealed instrument, there must be a 
consideration to support it. If the original debt or obligation rest 
upon a good consideration, this will support the promise of guar 



45$ THE PROPERTY RIGHTS OF 

anty, if this promise was made at the same time with or prior to 
the original debt. But if that debt or obligation be first incurred 
and completed before the guaranty is given, there must be a new 
consideration for the promise to guarantee that debt, or the guar- 
anty is void. But the consideration need not pass from him who 
receives the guaranty to him who gives it. Any benefit to him for 
whom the guaranty is given, or any injury to him who receives it, 
is a sufficient consideration if the guaranty be given because of it. 

A guaranty is not binding unless it is accepted, and unless the 
guarantor has knowledge of this. But the law presumes this ac- 
ceptance in general, when the giving of the guaranty and any action 
on the faith of it by the party to whom it is given are simultane- 
ous. In New York, wherever the guaranty is absolute, notice of its 
acceptance is unnecessary, unless expressly or impliedly required by 
the offer of guaranty. But, generally, an offer to guarantee a 
future operation, especially if by letter, does not bind the offerer, 
unless he has such notice of the acceptance of his offer as would 
give him a reasonable opportunity of making himself safe. 

A guarantor is often called a surety, and is generally so called 
in cases where the good conduct of a third person is guaranteed. 
The words "surety" and "guarantor" do not mean precisely the 
same thing, but they are often used as if they did. 

If the liability of the principal be materially varied by the act 
of the party guaranteed, without the consent of the guarantor, the 
guarantor or surety is discharged. Many interesting cases have 
arisen which involve this question. Thus, where a bond was given 
conditioned for the faithful performance of the duties of the office 
of deputy-collector of direct taxes for eight certain townships, and 
the instrument of appointment, referred to in the bond, was after- 
wards altered so as to extend to another township, without the con- 
sent of the surety, the Supreme Court of the United States held that 
the surety was discharged from his responsibility for moneys col- 
lected by his principal after the alteration. Again, in an English 
case, the facts were, that, in a bond by sureties for the careful atten- 
tion to business and the faithful discharge of the duties of an agent 
of a bank, it was provided "that he should have no other business 
of any kind, nor be connected in any shape with any trade, manu- 
facture, or mercantile copartnery, nor be agent of any individual or 
copartnery in any manner or way whatsoever, nor be security for 
any individual or copartnery in any manner or way whatsoever." 
The bank subsequently, without the knowledge of the sureties, 
increased the salary of the agent, he undertaking to bear one-fourth 
part of all losses which might be incurred by his discounts. It was 
held that this was such an alteration of the contract, and of the 



A CITIZEN OF THE UNITED STATES. 459 

liability of the agent, that the sureties were discharged, notwith- 
standing that the loss arose not from discounts, but from improper 
conduct of the agent. 

The guarantor is also discharged if the liability or obligation 
be renewed or extended by law. As if a bank, incorporated for 
twenty years, be renewed for ten more, and the officers and busi- 
ness of the bank go on without change : the original sureties of the 
cashier are not held beyond the first term. So a guaranty to a 
partnership is extinguished by a change among the members, 
although neither the name nor the business of the firm be changed. 
But a guaranty, by express agreement, may be made to continue 
over most changes of this kind. 

A specific guaranty, for one transaction which is not yet ex- 
hausted, is not revocable. If it be a continuing or a general guar- 
anty, it is revocable, unless an express agreement, founded on 
consideration, makes it otherwise. 

A creditor may give his debtor some accommodation or indul- 
gence, without thereby discharging his guarantor. It would seem 
just, however, that he should not be permitted to give him any 
indulgence which would materially prejudice the guarantor. Gen- 
erally, a guarantor may always pay a debt, and so acquire at once 
the right of proceeding against the party whose debt he has paid. 
On this ground, it has been held that where a surety requested the 
creditor to proceed against the principal debtor, and the creditor 
refused to do this, and afterwards the debtor became insolvent and 
the surety was without indemnity, still, the surety (or guarantor) 
was not discharged, because he might have paid the debt, and then 
sued the party whose debt he paid. In New York, it seems to be 
the law, that, if the surety requests the creditor to proceed against 
the principal debtor, and he refuses, and the principal debtor after- 
wards becomes insolvent, the surety will be discharged. This 
seems to be the better rule. If, by gross negligence, the creditor 
has lost his debt, and has deprived the surety of security or indem- 
nity, the surety must be discharged, unless he was equally negli- 
gent. If a creditor gives time to his debtor, by a binding agreement 
which will prevent a suit in the mean time, this undoubtedly dis- 
charges the guarantor (unless the surety consents to the delay), 
because it deprives him of his power of acquiring a right of pro- 
ceeding against the debtor, by paying the debt ; for the debtor can- 
not during that time be sued. 

If there be a failure on the part of the principal, and the guar- 
antor is looked to, he should have reasonable notice of this. And, 
generally, any notice would be reasonable which would be sufficient 
in fact to prevent his suffering from the delay. And if there be no 



460 THE PROPERTY RIGHTS OF 

notice, and the guarantor has been unharmed by the want of notice, 
he is not discharged. 

If a guaranty purport to be official, that is, if it be made by 
one who claims to hold a certain office, and to give the promise of 
guaranty only as such officer, and not personally, the general rule 
is, that he is not liable personally, provided he actually held that 
office and had a right to give the guaranty officially. But he 
would still be held personally if the promise made or the relations 
of the parties indicated that credit was given personally to the 
party promising, and not merely to him in his official capacity; 
or if he had no right to give the promise in his official capacity. 

A guaranty was given for the price of a cargo of iron ; and the 
buyer bargained with the seller to pay him more than the fair price, 
the excess to go towards an old debt. The guaranty was held to 
be altogether void, because fraudulent, and could not be enforced 
even for the fair price. 

FORMS ANNEXED TO THIS CHAPTER. 

(127.) A guaranty to be indorsed on a note. 

(128.) A guaranty of a note, on a separate paper. 

(129.) A guaranty in another way. 

(130.) A letter of guaranty. 

(131.) A guaranty with collaterals, authorizing sales. 

(132.) A guaranty with collaterals, promising additional security or 
authorizing sale. 

(127.) 

GUARANTY TO BE INDORSED ON A NOTE. 
For value received, I guarantee the due payment of the within written 
note. 

(Dale.) (Signature.) 

(128.) 

GUARANTY OF A NOTE ON SEPARATE PAPER. 
For value received, I guarantee the due payment of a promissory note, 
dated whereby promises to pay to 

dollars in months. 

(Date.) (Signature.) 

(129.) 

GUARANTY IN ANOTHER WAY. 

For value received, I guarantee that the within (note or bill, or that such 
a note or bill, describing it), will be collected and paid, if demanded in due 
course of law. 

(Date.) (Signature.) 



A CITIZEN OF THE UNITED STATES. 461 



(130.) 
LETTER OF GUARANTY. 

Sir, — If you will sell to Mr. of the goods he 

wishes to buy (or the goods may be described), to the amount of (this may be 
omitted if the guaranty is intended to be of any amount), within 
year (or days or months, or the time may be omitted if it is not intended to 
limit it), from the date hereof, I, for value received, hereby promise and 
guarantee that the price thereof shall be duly paid. (This letter should also 
state on what terms the goods should be sold, as to credit, delivery, fyc, unless 
it is intended to leave all this to the buyer and seller.) 

(Date.) (Signature.) 

When goods or stocks or other securities are given as collateral 
security for borrowed money or any other debt, an instrument is 
sometimes given, the intention of which is to guarantee that the 
collaterals should be and remain sufficient to secure the indebted- 
ness. It may be in one of the following forms, as the bargain 
requires. These are sometimes called "margin guaranties" 



(131.) 

GUARANTY WITH COLLATERALS, AUTHORIZING SALE. 

Whereas, I (or we) have deposited with as collateral 

security for payment at maturity of the following (here describe the debt 
guaranteed). 

Now this witnesseth, That in the event of the non-payment at 
maturity of any or all of these hereby authorize or 

assigns, to sell the above (the collaterals), at public or private 
sale, or at the brokers' board, without notice to and apply pro- 

ceeds to payment of said and all necessary expenses, holding 

responsible for any deficiency. 
In witness whereof, have hereunto set hand 

and seal , this day of one thousand eight hundred 

and 

(Signature. ) 
( Witness.) 

(13?.) 

GUARANTY WITH COLLATERALS, PROMISING ADDITIONAL SECURITY 
OR AUTHORIZING SALE. 

Having borrowed this day of (the sum borrowed) , on the following 
collaterals (here describe the collaterals). 

I hereby agree, in case the market price of the said stock should fall 
at any time during the continuance of the loan to an amount insufficient 



%t>2 THE PROPERTY RIGHTS OF 

to cover the sum loaned, with per cent margin added thereto, 

that in such event I will, on demand, deposit additional security to be 
approved by him, which shall be sufficient to keep the collaterals thus 
deposited, equal to a sum per cent above said loan, and so as 

often as said collaterals shall diminish; and that', in default thereof, the 
said shall have power to sell at public or private sale, without 

notice, all or any of the said securities (as well as any others he may 
hold), to pay the amount of the said loan, with all interest and charges 
thereon, and for so doing I fully release him of all claims, actions, and 
causes thereof. 



SECTION II. 
THE STATUTE OF FRAUDS. 

We give this statute here, because a principal provision in it, 

and that for which it most frequently comes before the courts, and 
should be known to persons transacting business, relates to guar- 
anties. 

The English statute of frauds, so called, was passed in the 
29th year of Charles II. (1677), for the purpose of preventing frauds 
and perjuries, by requiring in many cases written evidence of a con- 
tract. In nearly all our States a similar statute has been enacted. 
But no two of the statutes of the different States agree exactly in 
all their provisions. They do, however, agree substantially ; and 
we shall give in this chapter the prevailing and nearly universal 
rules for the construction and application of those parts of this 
statute, which are of the greatest importance in commercial trans- 
actions. The provisions which especially relate to business law are 
contained in the fourth and seventeenth sections. 

By the fourth section, it is enacted "that no action shall be 
brought w T hereby to charge any executor or administrator, upon 
any special promise, to answer damages out of his own estate ; or 
whereby to charge the defendant, upon any special promise, to 
answer for the debt, default, or miscarriages of another person ; or 
to charge any person upon any agreement made upon considera- 
tion of marriage ; or any contract for sale of lands, tenements, or 
hereditaments, or any interest in or concerning them ; or upon any 
agreement that is not to be performed within the space of one year 
from the making thereof: unless the agreement, upon which such 
action shall be brought, or some memorandum or note thereof, shall 
be in writing, and signed by the party to be charged therewith, or 
some other person thereunto by him lawfully authorized." 

By the seventeenth section, it is enacted that " no contract for 
the sale of any goods, wares, and merchandises, for the price of 



A CITIZEN OF THE UNITED STATES. 463 

£10 sterling or upwards, shall be allowed to be good, except the 
buyer shall accept part of the goods so sold, and actually receive 
the same, or give something in earnest to bind the bargain, or in 
part of payment, or that some note or memorandum in writing of 
the said bargain be made and signed by the parties to be charged 
by such contract, or their agents thereunto lawfully authorized." 

The second and fifth clauses of the fourth section, and the whole 
<>f the seventeenth, relate to our present subject. The second clause 
prevents a merely oral guaranty from being enforced at law; but 
if money be paid on one, it cannot be recovered back. 

A PROMISE TO PAY THE DEBT OF ANOTHER. 

A promise to pay the debt of another is said to be a collateral 

promise, and not an original promise. 

It is very often difficult to say whether the promise of one to 

pay for goods delivered to another is an original promise : as to 
pay for one's own goods, and then it need not be in writing; or a 
promise to pay the debt, or guaranty the promise of him to whom 
the goods are delivered, and then it must be in writing. 

The question may always be said to be : To whom did the seller 
give, and was authorized to give, credit? This question the 
jury will decide, upon consideration of all the facts, under the 
direction of the court. If a seller sues one to whom he did 
not deliver the goods, on the ground that this other promised 
to pay for them, then the question is, Did this other promise 
to pay for them as for his own goods ? for then the promise need 
jot be in writing. Or did he promise to pay for them as for 
the goods of the party receiving them? and then it is a promise 
to pay the debt of another, and must be in writing. If, on examina- 
tion of the books of the seller, it appears that he charged the goods 
to the party who received them, it will be difficult, if not impossible, 
for the seller to maintain that he sold them to the other party. But 
if he charged them to this other, such an entry would be good evi- 
dence, and, if confirmed by circumstances, strong evidence that this 
party was the purchaser. But it cannot be conclusive ; for the party 
not receiving the goods may always prove, if he can, that he was not 
the buyer, and that he promised only as surety for the party who 
was the buyer; and, consequently, that his promise cannot be en- 
forced if not in writing. And, in general, in determining this ques- 
tion, the court will always look to the actual character of the 
transaction, and the intention of the parties. 

The courts, both in England and America, have often endeav- 
ored to illustrate this question. Thus, in an early English case, the 



464 THE PROPERTY RIGHTS OF 

court said : " If two come to a shop, and one buys, and the other, 
to gain him credit, promises the seller, ' If he does not pay you, 1 
will,' this is a collateral undertaking, and void, without writing, by 
the statute of frauds. But if he says, i Let him have the goods, 1 
will be your paymaster,' this is an undertaking as for himself, and 
he shall be intended to be the very buyer, and the other to act but 
as his servant." So, in a case in Maryland, the court said : " If 
B gives credit to C for goods sold and delivered to him, on the 
promise of A to ' see him paid,' or ' to pay him for them if C should 
not,' in that case it is the immediate debt of C, for which an action 
will lie against him, and the promise of A is a collateral undertak- 
ing to pay that debt [and must be in writing], he being only liable 
as a surety. But where the party undertaken for is under no lia- 
bility himself, the promise is an original undertaking of the party 
promising, and binding upon him without being in writing. Thus, 
if B furnishes goods to C, on the express promise of A to pay for 
them, as if A says to him, ' Let C have goods to such an amount, 
and I will pay you,' and the credit is given to A, in that case, C 
being under no liability, C cannot be sued for the price ; there is 
nothing to which the promise of A can be collateral ; but A being 
the immediate debtor, it is his original undertaking, and not a 
promise to answer ' for the debt of another,' and therefore need not 
be in writing." 

Whenever the main purpose and object of the promisor is not 
to answer for another, but to subserve some purpose of his own, his 
promise is not within the requirement of the statute, and can there- 
fore be enforced although not in writing, and although it may 
be in form a promise to pay the debt of another, and although the 
performance of it may incidentally have the effect of extinguishing 
the liability of another. If an old debt is extinguished by a new 
promise, this promise is considered as an original one, and not 
within the requirement of the statute. 

If there he an oral promise to pay the debt of another, and also 
to do some other thing, this last can be enforced at law, if this 
other thing, and so much of the promise as relates to it, can be 
severed from the debt of the other and the promise relating to that 
debt ; for although that promise must be in writing, the other may 
be oral. 



AN AGREEMENT NOT TO BE PERFORMED WITHIN A TEAR. 

Under the fifth clause in the fourth section it is held that an 
agreement which may be performed within the year is not affected 
by the statute, as the words, "that is not to be performed within 



A CITIZEN OF THE UNITED STATES. 465 

one year," do not apply to an agreement which, when made, was, 
and by the parties was understood to be, fairly capable of complete 
execution within a year, without the intervention of extraordinary 
circumstances, — although in point of fact its execution was ex- 
tended much beyond the year. So where one agreed orally, for 
one guinea, to give another a number of guineas on the day of his 
marriage, it was held that this promise was not within the statute, 
that is, not one which the statute required to be in writing, because 
he might be married within a year, and the promisor was there- 
fore bound by it. So, where one agreed orally never to go into the 
staging business in a certain place ; as this contract could last only 
while the promisor lived, and he might die within a year, he was 
held to be bound by it. 

THE FORM AND SUBJECT-MATTER OF THE AGREEMENT. 

The "agreement" must be in writing; but generally, in this 
country, the writing need not be all on one piece of paper. For it 
is sufficient if on several pieces, as in several letters, which, however, 
relate to one and the same business, and may fairly be read together 
as the statement of one transaction. But it must appear from the 
papers that they are so connected. 

The " signature " may be in any part of the paper, — the 
beginning, middle, or end, — except in those of our States in which 
the statute has the word "subscribed" instead of "signed;" in 
which case it should be in the usual place at the bottom. If the 
name and the agreement be printed, it is sufficient ; hence, a printed 
shop-bill, with the name of the seller as usual at the beginning, if 
delivered to the buyer, is generally sufficient to charge the seller in 
an action for refusing to deliver the goods. 

Shares in railroad companies, in manufacturing companies, and, 
generally, in all corporations and joint-stock companies, are "goods, 
wares, or merchandises," within the meaning of the statute in this 
country, and an agreement for their purchase and sale must there- 
fore be in writing. 

It may be further remarked, that the operation of the statute 
has been always limited to such contracts as have not been ex- 
ecuted in any substantial part, and therefore remain wholly execu- 
tory. For if they have been executed substantially in good part, 
they are binding, although only oral. 

In Massachusetts, the statute of frauds also provides (third sec- 
tion) that no action shall be brought to charge any person upon, or 
by reason of, any representation or assurance made concerning the 
character, conduct, credit, ability, trade, or dealings of any other 

30 



466 THE PROPERTY RIGHTS OF 

person, unless it be made in writing, and signed by the party to be 
charged. And there are provisions substantially similar to this in 
the statutes of Maine and Vermont. 

Instead of the " £10 " in the seventeenth section of the English 
statute, the sum mentioned in the statutes of frauds of the dif- 
ferent States is generally from thirty to fifty dollars. 



CHAPTER XVI. 
PAYMENT AND TENDEB. 

SECTION I. 
HOW PAYMENT MAY BE MADE. 

The obligations which arise out of most mercantile contracts 

are to be satisfied by payment of money. The parties may always 
agree to any specific manner of payment, and then that becomes 
obligatory on the creditor as well as the debtor. As, by deducting 
the amount to be paid from a debt due to the debtor, either from 
the creditor or from any one else. Or the amount may be made, 
by agreement, payable by a bill or note. If the debt is to be paid 
by a bill or note, it must be such a one as is agreed upon, and this 
must be tendered by the debtor. But the word " note " or " bill " 
does not necessarily mean an " approved note " or " bill ; " and if this 
phrase be itself used, it means only a note or bill to which there is 
no reasonable objection ; that is, one which ought to be approved. 

In the absence of any especial agreement, the only payment 
known to the law is by cash, which the debtor must pay when it is 
due, or tender to the creditor. 

The tender should, properly, he in cash, or in hills made a legal 
tender by law, and must be so if that is required ; but a tender in 
good and current bank-bills is sufficient, unless it be objected 
to because they are not money. 

Generally, if the tender he refused for any express and specific 
reason, the creditor cannot afterwards take advantage of any in- 
formality to which he did not object at the time of the tender. 

The tender may he of a larger sum than is due. But a tender 
of a larger sum, if made with a requirement of change or of the 
balance, is not good. Nor must it be accompanied with a demand 
or condition that any instrument or document shall be delivered ; 



A CITIZEN OF THE UNITED STATES. 467 

nor that the sum tendered shall be received as all that is due ; nor 
that a receipt in full shall be given. But a simple receipt for so 
much money paid may be demanded. We have already seen that, 
if a receipt be given, it is only strong evidence of payment, but 
not conclusive. And even if it be " in full of all demands," it is 
still open to explanation or denial by evidence. 

A lawful tender, and payment of the money into court, is a 
good defence to an action for the debt. But the creditor may 
break down this defence by proving that, subsequently to the 
tender, he demanded the money of the debtor, and the debtor 
refused to give it. If a debtor tenders money to pay his debt, he 
must be always ready to pay that money if it be asked from him. 

If the buyer or debtor give, and the seller or creditor receive, 
a negotiable note or bill for the sum due, this is not anywhere ab- 
solute and conclusive payment. In Maine and in Massachusetts the 
law presumes that such note or bill is payment of the debt unless a 
contrary intention is shown. In nearly all the States of this Union 
but those two, and in the Supreme Court of the United States, it 
is not payment, unless the intention of the parties that it should 
be so is shown. In New York, it has been held that the debtor's 
own promissory note is not payment, even if it be intended or ex- 
pressly agreed that it should be. 

If a creditor, who receives from his debtor any bill or note, 
negotiates or sells it for value to a third party, without making 
himself liable, the bill or note was payment, although it be dishon- 
ored, because it has been good to the debtor, and he has received 
the avails of it ; and if the law did not hold that the bill had 
paid the debt, he could sue the original debt, and then he would have 
the value of the bill or payment twice. Not so, however, if he 
negotiates it in such a way that he is himself liable upon it ; for if 
he pays it, he loses what he sold it for, unless he can recover his 
debt from his debtor. 

SECTION II. 
APPROPRIATION OF PAYMENT. 

If one who owes several debts to his creditor makes to him & 

general payment, it may be an important question to which of those 
debts this payment shall be appropriated : for some of them may 
be secured, and others not ; or some of them may carry interest, and 
others not ; or some of them be barred by the statute of limita- 
tions, and others not. 

There is no doubt that the payor may appropriate his payment, 
at the time of the payment, at his own pleasure. And if he does 



468 THE PROPERTY RIGHTS OF 

not exercise this right, the receiver may, at the time of payment, 
make the appropriation. But if neither party does this at that time^ 
and at a future period the question comes up as to which party 
may then make the appropriation, or, rather, how the law will then 
appropriate the payment, it is then the better and prevailing rule 
that, if the court can ascertain, either from the words used, or from 
the circumstances of the case, or from any usage, what was the 
intention and understanding of the parties at the time of the pay- 
raentj that intention will be carried into effect. And if this cannot 
be ascertained, then the court will direct such appropriation of the 
payment as will best protect the rights and interests of both parties, 
and do justice between them. And one reason for this conclusion 
would be, that the law would presume that this, was the original 
intention of the parties. A very general rule, which would indeed 
be always adopted in the absence of especial reason to the contrary, 
is, to apply the payment first to the oldest debt, until that is satis- 
fied, and then go on applying the payment to the other debts in the 
order of their age. 

If A owes a debt to B, on B's own account, and another debt 
to B as trustee for somebody, and A pays B a sum of money 
without appropriating it, B cannot apply it all to the debt due 
him on his own account, but must divide it between that debt and 
the debt due to him as trustee, in proportion to their respective 
amounts. Because it is his duty as trustee to take as good care 
of the debts due to him for another, as of those due to him on his 
own account. 

We have spoken of a " bill or note ; " and notes are sometimes 
called bills ; so bank-notes are often called bank-bills. But the legal 
meaning of " bill " is always a draft or order on somebody to pay 
money. A note is a promise to pay. See chapter on Notes and 
Bills. 



CHAPTER XVII. 
EECEIPTS AND KELEASES. 

A receipt is only an acknowledgment that a sum of money has 
been paid. It may be in one word, as when, under a bill of parcels, 
the seller writes the word " paid," and signs it. More commonly 
the words are "received payment." Formerly it was usual to 



A CITIZEN OF THE UNITED STATES. 469 

add the words "errors excepted." Then it grew customary to 
write the initial letters " E. E. " instead of the words ; but all this 
is unnecessary. If there be an error in the receipt, or in the paper 
receipted, the law permits the party injured by it to explain and 
correct the error, although there be no express reservation or ex- 
ception of errors. 

Receipts are of all degrees of fulness, from the single word 
" paid," to those which relate the particulars for which the receipt 
is given, and the manner in which the money was paid or the 
thing delivered. I give the following forms of receipts and 
releases : — 



FORMS ANNEXED TO THIS CHAPTER. 

(133.) A receipt in simplest form. 

(134.) A receipt, stating on what account the money is received. 

(135.) A receipt, stating the purpose for which the money or articles 

are received. 
(136.) A general release. 

(137.) A mutual general release by indenture. 
(138.) A release from creditors to a debtor, under a composition. 
(139.) A release of all legacies. 
(140.) A release of a bond, it being lost. 
(141.) A release of a judgment. 
(142.) A release of a condition. 

(143.) A release of a covenant contained in an indenture of lease. 
(144.) A release in extinguishment of a power. 
(145.) A release from a lessor to a lessee (upon his surrendering hi* 

lease) , from the covenants therein. 
(146.) A general release of dower. 
(147.) A release of dower to the heir. 
(148.) A release of dower, in consideration of an annuity given by 

will. 
(149.) A release of dower, where the present husband of the widow 

joins in the deed. 
(150.) A release of a trust. 
(151.) A release of right to lands. 
(152.) A release between two traders, on settling accounts. 



(133.) 

A RECEIPT IN SIMPLEST FORM. 

(Date) . This day I have received from 
dollars. 

(Signature.} 



470 THE PROPERTY RIGHTS OF 



(134.) 

A SIMPLE RECEIPT, STATING ON WHAT ACCOUNT THE MONEY IS 

RECEIVED. 

(Date). This day I have received from 
dollars, on account of 

(Signature.) 

(135.) 

A RECEIPT, STATING THE PURPOSE FOR WHICH THE MONEY OR 
ARTICLES ARE RECEIVED. 

(Date.) This day the following (papers, or other articles, enumerat- 
ing and describing them), were delivered to me by (add, on account of, 
or in execution of, the promise or bargain, describing it; and, if they are 
delivered for any particular purpose, describe that), and I hereby acknowl- 
edge the receipt of them. 

(Signature.) 

Every receipt is open to evidence, not only to explain it, but to 
contradict it. Herein releases differ from receipts. A release gives 
up some right or claim which the releasor had against the releasee. 
It is in the nature of a contract, and therefore cannot be controlled 
or contradicted by evidence, unless on the ground of fraud. But if 
its words are ambiguous, or may have either of two or more mean- 
ings, evidence is receivable to determine the meaning. 

Like every other contract, it requires a consideration, and is of 
no force without one. But here comes in the rule of law as to a 
seal. The general rule is, as has been stated before, a seal implies, 
or is the same as, the assertion of a consideration ; and therefore it 
is always customary to put a seal to a release. But a release, even 
with a seal, if it can be shown to have been given without any con- 
sideration whatever, can be set aside. It is always best to state in 
the release itself that it was given for a consideration, and what the 
consideration is. A release properly drawn, and duly signed and 
sealed, is a complete defence to an action grounded on any of the 
debts or claims released. 

The following forms are for releases of various kinds: — 

• 
(136.) 

A GENERAL RELEASE. 

Know all men by these presents, That I (the name of the releasor), 
©f for and in consideration of the sum of to me 

paid by of have remised, released, and for ever 



A CITIZEN OF THE UNITED STATES. 471 

discharged, and by these presents do, for me, my heirs, executors, and 
administrators, remise, release, and for ever discharge, the said 
his heirs, executors, and administrators, of and from all and all manner of 
action and actions, cause and causes of action, suits, debts, dues, sum and 
sums of money, accounts, reckonings, bonds, bills, specialties, covenants, 
contracts, controversies, agreements, promises, variances, damages, judg- 
ments, extents, executions, claims, and demands whatsoever, in law and 
in equity, which against the said I ever had, now have, or 

which I, my executors or administrators, hereafter can, shall, or may have, 
for, upon, or by reason of, any matter, cause, or thing whatsoever, from 
the beginning of the world to the day of the date of these presents. 
In witness whereof, &c. 

(Signature.) (Seal.) 

(137.) 

A MUTUAL GENERAL RELEASE BY INDENTURE. 

This indenture, Made between of and 

of witnesseth, That the said doth by these pres- 

ents remise, release, and for ever quitclaim unto the said all 

and all manner of actions (as before); and this indenture further witness- 
eth, That the said by these presents, doth remise, release, and 
for ever quitclaim unto the said all and all manner of actions 
(as before). 

J \ witness whereof, &c. 

(Signature.) (Seal.) 

(138.) 

A RELEASE FROM CREDITORS TO A DEBTOR, UNDER A COMPOSITION. 
TO ALL PERSONS TO WHOM THESE PRESENTS MAY COME, We who have 

hereunto set our hands and seals, creditors of of 

send greeting. Whereas the said is indebted to us, his 

said creditors, in several sums of money, which he is not able fully to 
satisfy and discharge; we therefore have agreed, and do hereby agree, to 
accept of the sum of in full payment and satisfaction of all the 

debts owing to us respective'ly at the date hereof, by and from the said 
which is paid by or for the said (the name of the debtor) , to 
(the names of the persons to whom the money is to be paid for the creditors 
releasing) ,* and assignees by virtue of a commission of bankrupt awarded 
against the said for the use of, and to the intent that the same 

maybe shared and divided amongst, us his said creditors, seeking relief 
under the said commission, in proportion and according to the debts to us 
severally due and owing. Now, therefore, know ye, that for the considera- 
tion aforesaid, each of us, the said creditors who have hereunto set our hands 
and seals, for him and herself, his and her heirs, executors, and copart- 

l The words follotoing in Italic may be omitted, according to circumstances. 



472 THE PROPERTY RIGHTS OF 

ners, doth by these presents remise, release, and for ever discharge the 
said his heirs, executors, and administrators, of and from our 

said several debts, and all and all manner of action and actions 
which against the said each and every of us the said creditors 

now hath, or which each and every of our heirs, executors, or administra- 
tors, respectively, hereafter may, can, or ought to have, claim, or demand, 
for, upon, or by reason of, the said several and respective debts to us 
severally due and owing, or for or by reason of any other matter, cause, 
or thing whatsoever, from the beginning of the world until the day of the 
date hereof. 

In witness whebeof, &c. 

(Signature.} (Seal.) 



(139.) 
A RELEASE OF ALL LEGACIES. 

Know all men by these pbesents, That I of 

widow, have remised, released, and for ever quitclaimed, and by these pres- 
ents do for me unto of gentleman, 
executor of the last will and testament of late of 
deceased, and to the heirs, executors, and administrators of the said 
all legacies, gifts, bequests, sum and sums of money and 
demands whatsoever, bequeathed and given unto me the said 
in and by the last will and testament of deceased, and all and 
all manner of actions and suits, sum and sums of money, debts, duties, 
reckonings, accounts, and demands whatsoever, which I the said 
ever had, now have, or that I, my executors or administrators, can or may, 
at any time or times hereafter, have, challenge, or demand against the said 
his executors, administrators, or assigns, for or by reason of 
any matter, cause, or thing whatsoever, from the beginning of the world 
until the day of the date hereof. 

In witness whebeof, &c. 

(Signature.) (Seal.) 



(140.) 

A RELEASE OF A BOND, IT BEING LOST. 

To all to whom these pbesents may come (name of releasor) , 
sendeth greeting. Whereas by his bond or obligation, bear- 

ing date (recite the bond) , as by the said bond or obligation, and the condi- 
tion thereof may appear. And whereas the sum of mentioned 
in the said bond, with all the interest for the same, is paid and satisfied 
unto me the said in full discharge for the said bond or obliga- 
tion. And whereas the said bond or obligation is lost, or at present mis- 
laid, so that it cannot be found to be delivered up to the said 
to be cancelled. Now know ye, that I the said for the con- 
sideration aforesaid, have remised, released, and quitclaimed, and by these 



A CITIZEN OF THE UNITED STATES. 473 

presents do, for me, my executors and administrators, remise 
unto the said his heirs, executors, and administrators, as well 

the said recited bond or obligation, as all such sums of money as therein 
are mentioned to be due and payable, unto me the said my 

executors, administrators, or assigns; and also all actions, suits, caupe and 
causes of action, accounts, debts, reckonings, sums of money, judgments, 
executions, and demands whatsoever, which I the said ever 

had, now have, or that I, my executors, administrators, or assigns, or any 
of us, can or may have, for or against the said his executors 

or administrators, for, or by reason of, the said recited bond or obligation, 
or any other matter, cause, or thing whatsoever, concerning the same, 
from the beginning of the world to the day of the date hereof. 

In witness whereof, I the said have hereunto set my 

hand and seal, this day of 

{Signature.') (Seal.) 

In presence of 

( The following covenant mag be inserted before " In witness.") 

And I, the said for me, my executors do covenant 

to and with the said his that if I the said 

my executors, or any of us, at any time hereafter, do find 

oi can obtain the said recited bond or obligation, then I the said 
my executors or some of us, shall and will, within two months next 

after the said obligation shall be found as aforesaid, deliver, or cause to be 
delivered, the said bond or obligation unto the said his 



(141.) 
A RELEASE OF A JUDGMENT. 

This indenture, Made the day of in the year 

one thousand eight hundred and between of the 

first part, and of the second part. 

Whereas, Judgment was rendered on the day of 

in the year one thousand eight hundred and in an action in the 

between plaintiff and defendant in favor 

of the said against the said for the sum of 

as appears by the 

Now this indenture witnesseth, That the said part of the first 
part, in consideration of the sum of to duly paid at 

the time of the sealing and delivery of these presents, the receipt whereof 
is hereby acknowledged, ha granted, released, discharged, and set over, 
and by these presents do grant, release, discharge, and set over, unto 
the said part of the second part, the following described premises, 
to wit: 

Together with the hereditaments and appurtenances thereto belong- 
ing; and all the right, title, and interest of the said part of the first 
part, of, in, and to the same, to the intent that the lands hereby conveyed 



474 THE PROPERTY RIGHTS OF 

may be released and discharged from the said above-mentioned judgment, 
and from all lien or incumbrance that has attached to the same, by reason 
of the recovery of the said judgment, as free and clear in all respects as 
though said judgment had not been rendered. To have and to hold the 
lands and premises hereby released and conveyed, to the said part of 
the second part heirs and assigns, to their only 

proper use, benefit, and behoof for ever, free, clear, and discharged of and 
from all lien and claim, under and by virtue of the judgment aforesaid. 

In witness whereof, The said part of the first part ha hereunto 
set hand and seal , the day and year first above written. 

(Signatures.) (Seals.) 
In presence of 



(142.) 

A RELEASE OF A CONDITION". 

Know all men by these presents, That I, of 

for divers good considerations me hereunto moving, have 
demised, released, and quitclaimed, and by these presents, for me, my 
executors, administrators, and assigns, do unto 

of his heirs, executors, administrators, and assigns, as well 

one proviso or condition and all and every the sum and sums of money, 
specified in the same proviso or condition, contained or comprised in one 
pair of indentures of bearing date made between 

me the said of the one part, and the said of 

the other part, and also all and all manner of actions and suits, cause 
and causes of actions and suits, for or concerning the said proviso or con- 
dition. 

In witness whereof, I the said have hereunto set my 

hand and seal, this day of 



In presence of 



(Signature.) (Seal.) 



(143.) 



A RELEASE OF A COVENANT CONTAINED IN AN INDENTURE OF 

LEASE. 

TO ALL PERSONS TO WHOM THESE PRESENTS MAY COME (name of 

releasor) sendeth greeting. Whereas in and by an indenture of lease, bear- 
ing date made between of the one part, and the 
said of the other part, there is contained a covenant in these 
words following, viz. {recite the covenant verbatim, as therein contained), 
where unto relation being had, it doth at large appear. Now know ye, that 
I, the said for divers good causes and considerations me 
hereunto moving, have remised, released, and quitclaimed, and by these 
presents for me do unto the said 
his the said covenant, grant, clause, agreement, and article, 



A CITIZEN OF THE UNITED STATES. 475 

before rehearsed or recited, and all and every other matter, thing, and 
things specified, declared, and contained in the same covenant, clause, and 
agreement, and all the benefit, profit, advantage, and commodity that by 
any manner of means may or might arise, grow, come, or happen to me 
the said for or by reason of the same covenant, clause, arti- 

cle, or agreement, or any word, sentence, matter, thing, or things therein 
contained, so that the said his executors and assigns, and every 

of them, from henceforth for ever, shall be fully acquitted, released, and 
discharged against me the said my executors and administra- 

tors, and every of us, of, from, and for the said covenant, grant, clause, 
article, and agreement before rehearsed or recited, and of, from, and for 
every thing and things touching the same (but this present release shall 
not in any wise extend to any other covenant, clause, or article in the said 
indenture contained). 

In witness whereof, I, the said have hereunto set my 

hand and seal, this day of 

(Signature.) (Seal.) 

In presence of 



(144.) 

A RELEASE IN EXTINGUISHMENT OF A POWER. 
TO ALL PERSONS TO WHOM THESE PRESENTS MAY COME, Now knOW 

ye, that I, the said pursuant to the said agreement, and for 

divers good causes and considerations me hereunto moving, have released, 
extinguished, and discharged, and by these presents do fully and absolutely 
release, extinguish, and discharge, the said recited power for raising the 
said sum of as aforesaid, and all the lands therein 

comprised, or subject thereto, so that I, the said shall not 

nor will, at anytime or times hereafter, raise the same, or any part thereof, 
or hereafter charge the said lands with the payment thereof, 

or any part thereof. 

In witness whereof, I, the said have hereunto set my 

hand and seal, this day of 

(Signature.) (Seal.) 
In presence of 



(145.) 

A RELEASE FROM A LESSOR TO A LESSEE (UPON HIS SURRENDERING 
HIS LEASE) FROM THE COVENANTS THEREIN. 

TO ALL PERSONS TO WHOM THESE PRESENTS MAY COME (name of 

releasor) sends greeting. Whereas the said by his indenture 

of lease, bearing date did demise unto 

a messuage in at a certain rent, for a certain term 

of years, of which about years are yet to come and undeter- 

mined, in which said lease are contained covenants for repairing the said 



476 THE PROPERTY RIGHTS OF 

premises, and other covenants on the part of the said to be 

performed. And whereas, by agreement between the said 
and the said hath delivered tip the said recited 

lease, and surrendered the same, and all his interest and term in and to 
the said house and premises. Now, therefore, know ye, that the said 
in consideration thereof, doth hereby, for himself, his heirs, 
executors, and administrators, remise, release, and for ever discharge the 
said his executors and administrators, of and from all and 

every the covenants and agreements in the said recited lease contained, by 
and on the part and behalf of the said his to be 

done and performed, and from all actions, suits, costs, charges, payments, 
damages, claims, and demands whatsoever, in law and equity, for or con- 
cerning the same in any manner of wise. 

In witness whereof, I, the said have hereunto set my 

hand and seal, this day of 

{Signature.) (Seal.) 

In presence of 



(146.) 

A GENERAL RELEASE OF DOWER. 

To all to whom these presents shall come (name of re- 
leasor) send greeting. Know ye, that the said the party 
of the first part to these presents, for and in consideration of the sum 
of lawf al money of the United States, to her in hand paid 
at or before the ensealing and delivery of these presents, by 
of the second part, the receipt whereof is hereby acknowledged, hath 
granted, remised, released, and for ever quitclaimed, and by these presents 
doth grant, remise, release, and for ever quitclaim, unto the said party of 
the second part, heirs and assigns, for ever, all the dower and 
thirds, right and title of dower and thirds, and all other right, title, inter- 
est, property, claim, and demand whatsoever, in law and equity, of her, the 
said party of the first part, of, in, and to (here describe the estate the dower 
in which is released), so that she, the said party of the first part, her heirs, 
executors, administrators, or assigns, nor any other person or persons, for 
her, them, or any of them, shall not have, claim, challenge, or demand, or 
pretend to have, claim, challenge, or demand, any dower or thirds, or any 
other right, title, claim, or demand whatsoever, of, in, or to the same, or 
any part cr parcel thereof, in whosesoever hands, seisin, or possession the 
same may or can be, and thereof and therefrom shall be utterly barred and 
excluded for ever by these presents. 

In witness whereof, The said party of the first part to these presents 
hath hereunto set her hand and seal, the day of 

in the year of our Lord one thousand eight hundred and 

(Signature.) (Seal.) 

In presence of 



A CITIZEN OF THE UNITED STATES. 477 



(147.) 

A RELEASE OF DOWER TO THE HEIR. 

Know all men by these presents, That I, relict of 

late as well for and in consideration of 

to me paid, at or before by my son 

the receipt whereof I do hereby acknowledge, and for the love and affec- 
tion which I have to my said son, have granted, remised, released, and for 
ever quitclaimed, and by these presents do unto the said 

his heirs and assigns, for ever, all the dower and thirds, right 
and title of dower and thirds, and all other right, title, interest, property, 
claim, and demand whatsoever, in law or in equity, of me the said 
of, in, and to (a description of the parcel of land in which 
dower is released), so that neither I, the said my heirs, execu- 

tors, or administrators, nor any other person or persons for me, them, or 
any of them, shall have, claim, challenge, or demand, or pretend to have 
any dower or thirds, or any other right, title, claim, or de- 
mand, of, in, or to the said premises, but thereof and therefrom shall be 
utterly debarred and excluded, for ever, by these presents. 

In witness whereof, The said party of the first part to these 

presents hath hereunto set her hand and seal, the day of 

in the year of our Lord one thousand eight hundred and 



In presence of 



(Signature.) (Seal.) 



(148.) 



A RELEASE OF DOWER IN CONSIDERATION OF AN ANNUITY GIVEN 

BY WILL. 

TO ALL PERSONS TO WHOM THESE PRESENTS MAY COME (name Of 

releasor) , widow, relict, and residuary legatee of late oi 

deceased, sendeth greeting. Whereas the said 
in and by his last will and testament, duly signed, sealed, published, and 
declared in my presence and with my approbation, bearing date 
did settle and secure unto and upon me the said an annuity 

of - to be paid unto me half-yearly, by equal payments, in lieu 

and full satisfaction of the dower or thirds at common law, which I 
might otherwise have, claim, or be entitled unto, out of all and every the 
lands, tenements, and hereditaments whatsoever of my said late husband, 
deceased, or of, in, to, or out of the reversion or remainder, rents, 
issues, and profits thereof. Now know ye, that I, the said 
for and in consideration of the said annuity so secured to me as afore- 
said, and in pursuance and part performance of the said last will and 
testament of my said late husband, do hereby declare myself fully satis- 
fied and contented therewith, and do hereby remise, release, and for ever 
quitclaim unto of and of 

trustees, appointed in and by the said last will and tes- 



478 THE PROPERTY RIGHTS OF 

tament of my said late husband (in their actual possession and seisin now 
being), their executors all and all manner of dower in and to 

the said premises, but thereof and therefrom, shall be utterly debarred and 
excluded, for ever, by these presents. 

In witness whereof, The said party of the first part to these presents 
hath hereunto set her hand and seal, the day of 

in the year of our Lord one thousand eight hundred and 

(Signature.) (Seal.) 
In presence of 



(149.) 

A RELEASE OF DOWER, WHERE THE PRESENT HUSBAND OF THE 
WIDOW JOINS IN THE DEED. 

Know all men by these presents, That (name of husband), of 
and (name of wife), his wife, in her right, in consideration of 
paid them by of the receipt whereof 

they hereby acknowledge, have granted, remised, released, and for ever 
quitclaimed, and by these presents do unto the said 

his heirs and assigns, for ever, all the right which the said 
hath to dower or thirds, of and in (here describe the estate) , whereof her 
late husband (name of former husband), late died seised, situate, 

which she claims as the endowment of the said 
deceased, and all the right, title, interest, and claim whatsoever, which the 
said and have or either of them hath, or by law 

might have, of, in, and to the same To have and to hold the 

same to the said and his heirs and assigns, for ever ; and the 

said and for themselves, their heirs, executors, 

and administrators, do hereby covenant with the said and his 

heirs and assigns, that he and they shall henceforth for ever have and 
quietly enjoy the released premises, without any claim or demand had or 
made, or to be had or made, by them, or any persons claiming, or who 
may claim, the same or any part thereof, by, from, or under them or their 
heirs. 

In witness whereof, The said party of the first part to these presents 
hath hereunto set her hand and seal, the day of 

in the year of our Lord one thousand eight hundred and 

(Signature.) (Seal.) 

In presence of 

(150.) 

A RELEASE OF A TRUST. 

To all to whom these presents may come (name of releasor) 

sendeth greeting. Whereas, by indenture bearing date 

made between (here recite the deed) , in which said indenture the said 

doth hereby declare, that his name was only used in trust, 

for the benefit and behoof of of Now know ye, 



A CITIZEN OF THE UNITED STATES. 479 

that I, the said in discharge of the trust reposed in me, at 

the request of the said have remised, released, and surren- 

dered, assigned, and set over, and by these presents, for me, my executors 
and administrators, do freely and absolutely remise unto the 

said his executors all the estate, right, title, 

interest, use, benefit, privilege, and demand whatsoever, which I, the said 
have, or may have or claim, of or to the said premises, or of 
and in any sum of money, or other matter or thing whatsoever, in the said 
indenture contained, mentioned, and expressed, so that neither I, the said 
my executors or administrators, or any of us, at any time 
hereafter, shall or will ask, claim, challenge, or demand any interest 
or other thing, in any manner whatsoever, by reason or means 
of the said indenture, or any covenant therein contained, but thereof and 
therefrom, and from all actions, suits, and demands, which I, my execu- 
tors, administrators, or assigns, may have concerning the same, shall be 
utterly excluded and for ever debarred, by these presents. 

In witness whereof, The said party of the first part to these presents, 
hath hereunto set her hand and seal, the day of 

in the year of our Lord one thousand eight hundred and 

(Signature.) (Seal.) 
In presence of 



(151.) 

A RELEASE OF RIGHT TO LANDS. 

Know all men by these presents, That I (name of releasor), of 
in consideration of to me paid by (name of 

releasee) the receipt have remised, released, and for ever 

quitclaimed, and by these presents do unto the said 

and his heirs, all the estate, right, title, interest, use, trust, claim, and de- 
mand whatsoever, both at law and in equity, which I, the said 
have, of, in, to, or out of, all and singular the following described parcel 
of land (here describe the land), so that neither I, the said 
my heirs or assigns, or any other person or persons in trust for me or them, 
or in my or their name or names, or in the name, right, or stead of any of 
them, shall or will, can or may, by any ways or means whatsoever, here- 
after have, claim, challenge, or demand, any right, title, or interest, prop- 
erty, claim, and demand, of, in, to, or out of the same or 
any of them, or any part thereof, but that I, the said my 
heirs and assigns, and every of them, from all estate, right, title, interest, 
property, claim, and demand, of, in, to, or out of the said 
or any of them, or any part thereof, are, is, and shall be, by these presents 
for ever excluded and debarred. 

In witness whereof, The said party of the first part to these presents 
hath hereunto set her hand and seal, the day of 

in the year of our Lord one thousand eight hundred and 

(Signature.) (Seal.) 
In presence of 



480 THE PROPERTY RIGHTS OF 

(152.) 
A RELEASE BETWEEN TWO TRADERS ON SETTLING ACCOUNTS. 

Whereas sundry accounts, current and otherwise, and divers dealings 
in trade, have been subsisting for a long time past between 
of trader, and of trader, which said 

accounts and dealings the said and have balanced 

and adjusted, whereby it appears that nothing remains due from the one 
to the other ; and whereas, therefore, to prevent any future disputes con- 
cerning the said accounts and dealings, and to confirm the said adjustment, 
the said and have mutually agreed to give recipro- 

cal releases to each other. Now, know all men by these presents, that the 
said (one of the parties) (for the considerations abovesaid, and to prevent 
all future disputes), for himself, his executors and administrators, doth 
remise, release, and for ever quitclaim unto the said (the other party), his 
all and all manner of action and actions, cause, and causes of 
action, suits, debts, dues, sum and sums of money, accounts, reckonings, 
bonds, specialties, covenants, contracts, controversies, agreements, prom- 
ises, variances, damages, extents, executions, claims, and demands whatso- 
ever, both at law and in equity, which against the said his 
the said now hath or ever had, on account of 
their said mutual dealings, or for or by reason of any other cause, matter, 
or thing whatsoever, from the beginning of the world to the day of the 
date of these presents. 

And the said (the other party) (for the considerations abovesaid, and to 
prevent all future disputes) , for himself, his executors and administrators, 
doth remise, release, and for ever quitclaim unto the said (the other party) , 
his all and all manner of action and actions, cause and causes 

of action, suits, debts, dues, sum and sums of money, accounts, reckon- 
ings, bonds, specialties, covenants, contracts, controversies, agreements, 
promises, variances, damages, extents, executions, claims, and demands 
whatsoever, both at law and in equity, which against the said 
his the said now hath or ever had, on account of 

their said mutual dealings, or for or by reason of any other cause, matter, 
or thing whatsoever, from the beginning of the world to the day of the 
date of these presents. 

In witness whereof, We have hereunto set our hands and seals, this 
day of in the year 

{Signatures.) {Seals.) 
In presence of 



A CITIZEN OF THE UNITED STATES. 481 



CHAPTER XVIII. 

NOTES OF HAND AND BILLS OF EX- 
CHANGE, DKAFTS, AND CHECKS. 

SECTION I. 
THE PURPOSE OF, AND THE PARTIES TO, SUCH PAPERS. 

These instruments are usually negotiable. By negotiable paper 
is meant evidence of debt which may be transferred by indorse- 
ment or delivery, so that the transferee or holder may sue the same 
in his own name, and as if it had been made payable to him orig- 
inally ; or, in other words, it means paper, that is, bills of exchange 
or promissory notes, or drafts, or checks, payable to the order of a 
payee, or to bearer. 

Where and when bills of exchange were invented is not cer- 
tainly known. They were not used by any ancient nations, but 
have been employed and recognized by most commercial nations for 
some centuries. A still more recent invention is the promissory 
negotiable note, which, in this country, for inland and domestic 
purposes, has taken the place of the bill of exchange very gener- 
ally. Besides these two, bills of lading and some other documents 
have a kind of negotiability, but it is quite imperfect. The utility 
of bills and notes in commerce arises from the fact that they repre- 
sent money, which is the representative of the market value of every 
thing ; and many of the peculiar rules respecting negotiable paper 
.are derived from this representation, and intended to make it ade- 
quate and effectual. 

The rules of law on the subject of negotiable paper are. 
more exact and technical than those of any other department of 
mercantile law. They reach, on many points, an extreme nicety, 
which makes it difficult to express them intelligibly to persons who 
do not already possess some familiarity with the subject. All diffi- 
culty of this kind could have been easily avoided by me, by omitting 
any notice of these nice points. But it was thought better to men- 
tion them, one and all, for these are the things an intelligent man 
of business should know ; and although the rules stated, especially 
those in reference to presentment, demand, notice, and some other 
subjects, may seem to be intricate and difficult, they require, it is 
believed, only careful consideration to be fully understood. 

31 



482 THE PROPERTY RIGHTS OF 

A negotiable bill of exchange is a written order whereby A 
orders B to pay to C or his order, or to bearer, a sum of money, 
absolutely and at a certain time. 

(153.) 

COMMON FORM OF A BILL OF EXCHANGE. 

New York, January 5, 18 
Value received, please pay to C or order, dollars, 

in days (or months) after sight (it may be after date), on 

account of 

(Signed) A 
ToB 

A is the drawer, B the drawee, and C the payee. If the bill is 

presented to B, and he agrees to obey the order, he " accepts " the 
bill, and this he does in a mercantile way, by writing the word 
"accepted" across the face of the bill, and also writing his name 
below this word ; then the drawee becomes the acceptor. If C, the 
payee, chooses to transfer the paper and all his rights under it to 
some other person, he may do this by writing his name on (usually 
across) the back; this is called indorsement, and C then becomes 
an indorser. The person to whom C thus transfers the bill is an 
indorsee. The indorsee may again transfer the bill by writing his 
name below that of the former indorser, and the indorsee then 
becomes the second indorser ; and this process may go on indefi- 
nitely. If the added names cover all the back of the note, a piece 
may be wafered on to receive more. In France, this added piece is 
called " allonge" and this word is used in some of our law-books, 
but not by our merchants, 

(154.) 

COMMON FORM OF A PROMISSORY NOTE. 

New York, January 5, 18 
Value received, I promise to pay B or order, 

dollars, in days (or months, or on demand) from date. 

(Signature.) 

It is best to write the words " from date," although they are 
often omitted, and the law construes the note as if they were 
written. 

It is quite important to have a clear idea of the difference 

between the parties to a note and the parties to a bill of exchange. 



A CITIZEN OF THE UNITED STATES. 483 

If A makes a note to B, then A promises to pay, and is the prom- 
isor, and B is the promisee, or payee. But if it be payable to B or 
order, B may write his name across the back, that is, may indorse 
it, and is an indorser. And if he directs, over his signature on the 
back, that the note be paid to any person in particular, such payee 
is now an indorsee. But when a bill is drawn, nobody promises, in 
words, to pay it. A orders B to pay to C. If B, when requested, 
says he will not do as ordered, the law supposes A, the drawer, to 
have promised that he would pay if B did not. If B " accepts." 
the law now supposes that B promises C to pay the bill to him. 
Now B, being the acceptor, is held by the law just as a maker of a 
note is, because he is supposed to have promised in the same way. 
A, the drawer, is held just as the first indorser of a note is held, 
because he is supposed to have promised to pay if B did not. It 
the bill was negotiable, that is, payable to C, or his order, then C 
may indorse the bill ; and although his name is the only one on the 
back of the bill, he is treated in law only as second indorser, 
because the drawer is bound in the same way as a first indorser. 
And if D then puts his name below C's, he is treated as third in- 
dorser, and so on. For the rights, obligations, and duties of all 
these parties, see the subsequent sections. 

We repeat, that a negotiable promissory note is a written 
promise to pay to a certain person or his order, or to bearer, at 
a certain time, a certain sum of money ; and he who signs this is 
called the maker or the promisor ; the other party is the promisee 
or payee. The payee of such a note has the same power of indorse- 
ment as the payee of a bill of exchange. If the note be not pay- 
able "to order," nor to "bearer," it is then not negotiable: these 
words, "or order" or "to bearer," being the words which make it 
negotiable. The maker of a negotiable note holds, as has been 
6aid, the same position as the acceptor of a bill, the drawer the 
same as the first indorser of a note ; that is, a party holding a note 
and seeking payment of it, looks first to the maker, and then to 
the indorser ; one holding a bill looks first to the drawee or acceptor 
and, on his failure, to the drawer. 

Neither indorsement nor acceptance nor making is complete 
until delivery and reception of the bill or note or acceptance; 
and a defendant may show that there was no legal delivery of the 
paper. 

The law of negotiable paper first defines a bill or note, and 
determines what instruments come under these names, and then 
describes and ascertains the duties and obligations of all the parties 
we have named above. We shall follow this order. 



484 THE PROPERTY RIGHTS OF 



SECTION n. 
WHAT IS ESSENTIAL TO A NEGOTIABLE NOTE OR BILL. 

A written order or promise may be perfectly valid as a written 
contract or promise, but, although made " to order," will not be 
negotiable, unless certain requisites of the law-merchant are com- 
plied with. 

The difference between a note that is negotiable and one that is 
not, is very important in many respects. One of these is as to the 
operation of the trustee process, or foreign attachment, or garnishee 
process, as it is sometimes called. If A owes B a hundred dollars, 
C, a creditor of B, may trustee A (to use the common phrase), and 
A must then pay to C what he owes to B. And this is so, even if 
A have given his note to B for the hundred dollars, if the note be 
not negotiable, that is, not to B or order. But if the note be 
negotiable, A cannot be trusteed. The reason is, that if he is 
obliged to pay the money to C, and B should indorse the note to 
D for value, and D take it honestly, A must pay the note to D, and 
so would have to pay it twice. But if the note is not negotiable, 
B cannot indorse it, and A is safe in paying the money over to C. 

1. The Promise must be absolute and definite. — The promise of 
the note, and the order of the bill, must be absolute. Words ex- 
pressive of intention only do not make a promissory note, and a 
mere request without an order does not make a bill of exchange. 
But no one word, and no set of words, are absolutely necessary ; 
for if from all the language the distinct promise or positive order 
can be inferred, that is sufficient. 

The time of payment is usually written in a bill or note ; if not, 
it is payable on demand. The time of payment must not depend 
on a contingency. In fact, any contingency apparent on the face 
of the instrument prevents it from being a negotiable note; and 
the happening of the contingency does not cure it. And the pay- 
ment promised or ordered must be of a definite sum of money. 

A negotiable bill of exchange or promissory note must be pay- 
able in money only, and not in goods or merchandise, or property 
of any kind, or by the performance of any act. If payable in 
" current funds," or " good bank-notes," or " current bank-notes," 
this should not be sufficient on general principles, and according to 
many authorities; some courts, however, construe this as meaning 
notes convertible on demand into money, and therefore as the same 
thing as money, and call the note negotiable. 



A CITIZEN OF TEE UNITED STATES. 485 

A bill or note may be written upon any paper or proper sub- 
stitute for it, in any language, in ink or pencil. A name may be 
signed or indorsed by a mark ; and, though usually written at the 
bottom, it may be sufficient if written in the body of the note ; as, 
" I, A B, promise," &c. ; unless it can be shown that the note was 
incomplete, and was intended to be finished by signature. If not 
dated, it will be considered as dated when it was made ; but a writ- 
ten date is prima facie evidence (this means evidence which may 
be overcome by opposite and better evidence, but until so over- 
come is sufficient) of the time of making. The amount is usually 
written in figures at the corner or bottom. If the sum is written 
at length in the body, and also in figures at the corner, and they 
differ, the written words control the figures, and evidence is not 
admissible to show that the figures were right and the words in- 
accurate. But in an American case, a promissory note, expressed 
to be for "thee hundred dollars," and in figures in the margin, 
$300, was held to be a good note for three hundred dollars, if the 
maker when he signed it intended "three" when he wrote "thee;" 
and whether such was his intention was a question for the jury. 
And the omission of such a word as "dollars," or "pounds," or 
" sterling," may be supplied, if the meaning of the instrument is 
quite clear. 

It has been just said that any contingency apparent on the face 
of the instrument prevents it from being a negotiable note. Hence 
it is not safe to write in the body of the note, or in connection with 
the promise, any condition or contingency. But if what is so 
written in no way affects the promise itself, the note may still be 
negotiable. 

Thus, in some parts of this country, persons who sell a machine, 
or other thing, on a credit, sometimes take a promissory note pay- 
able to the seller or order, and containing an additional clause, pro- 
viding that, until the note is paid, the property in the thing sold 
(or the ownership of it) shall be and remain in the seller. Such 
notes are often made in the following form : — 



(155.) 

TEL S 
[IP OF 

{Place and date) 18 



FORM OF A NOTE GIVEN FOR A CHATTEL SOLD, WITH A CONDITION 
PRESERVING THE OWNERSHIP OF THE SELLER. 



Ou the day of 18 

P. O. is county of and State of 

promise to pay or order dollars at the First National 

Bank in with interest at per cent per annum until 



486 THE PROPERTY RIGHTS OF 

paid. And it is further agreed that the title to the {reaper) , for which this 
note is given, shall remain in said {the seller) until this note is fully paid. 

Value received 
(Witness.) {Signature.) 

On the back of this note is sometimes (he following statement: — 

STATEMENT MADE FOR THE PURPOSE OF OBTAINING CREDIT. 

I own acres of land in my own name in the town of 

county of and State of which is worth, at a fair 

valuation, $ 

It is not incumbered by mortgage or otherwise, except the amount of 
$ and the title is perfect in me in all respects. I have stock 

and personal property to the amount of S over and above my 

debts and liabilities. 

The above property being worth, over and above my debts, liabilities, 
and exemptions, at least five times the amount of the within note. 

The question has arisen whether such a note is negotiable. Sup- 
pose the seller of the chattel, who is payee of the note, sells the note 
and indorses it for value to an innocent indorsee, and then the buyer 
finds that he was cheated, and puts in this defence of fraud when he 
is sued on the note by the indorser. He can make this defence if 
this note be not negotiable ; but he cannot make it if it be negotiable. 
I should say it was negotiable ; and that the only effect of the con- 
dition or provision annexed to the promise was, that it operated 
much as a mortgage of the thing by the buyer back to the seller, to 
secure the payment. 

2. The Payee must be designated. — The payee should be dis- 
tinctly named, unless the bill or note be made payable to bearer. If 
it can be gathered from the instrument, by a reasonable or necessary 
construction, w T ho is the payee, that is enough. The note may be 
made payable to the promisor or his order ; that is, a man may say, 
I promise to pay to my own order; and such note is nothing until 
the promisor not only signs it, but indorses it. 

A note indorsed in blank is always transferable by delivery, 
just as if it were made payable to bearer; because any holder may 
write over the indorsement an order to pay to himself. Indorse- 
ments are either indorsements in blank, by which is meant the name 
of the indorser and nothing more, or indorsements infuU, which are 
so called when over the name of the indorser is written, " pay to A 
B." (By A B we mean the name of the person to whom the note 
or bill is indorsed.) These two kinds of indorsements are fully 
explained subsequently in this chapter. A note to the order of 



A CITIZEN OF THE UNITED STATES. 487 

the promisor himself, and indorsed by him in blank, is therefore 
much the same thing as a note to bearer. But it is quite commonly 
used in our mercantile cities, because the holder can always pass it 
away without indorsing if he chooses, or can put his name on it as 
second indorser if he likes to. If the indorsee be named, and the 
note get into the possession of a wrong person of the same name, 
this person neither has nor can give a title to it. If the name be 
spelt wrong, evidence of intention is receivable. If a father and son 
have the same name, and either of them has possession of the note 
and indorses it, this would be evidence of his rightful ownership. 

If neither payable to bearer, nor to the maker's or drawer's 
order, nor to any other person, it would be an incomplete and invalid 
instrument. 

A note to a fictitious payee, with the same name indorsed by the 
maker, would undoubtedly be held to be the maker's own note, either 
payable to bearer, or to himself or order by another name, and so 
indorsed. If a blank be left in a bill for the payee's name, a bona 
fide (or honest) holder may fill it with his own, the issuing of the 
bill in blank being an authority to a bona fide holder to insert the 
name. And if the name of the payee be not the name of a person, 
as if it be the name of a ship, the instrument is payable to bearer. 
A note payable to different persons in the alternative, — that is, to 
one or the other of them, — is not a good promissory note. A* bill 
or note "to the order of" any person is the same as if to him "or 
his order," and may be sued by him without indorsement. 

3. Of Ambiguous and Irregular Instruments. — The law in rela- 
tion to protest and damages makes it sometimes important to dis- 
tinguish between a promissory note and a bill of exchange, because 
by law a foreign bill of exchange, if unpaid, should be protested, but 
not a promissory note ; but it is a common practice to protest prom- 
issory notes when they are not paid. The rule in general is, that, 
if an instrument be so ambiguous in its terms that it cannot be cer- 
tainly pronounced to be one of these to the exclusion of the other, 
the holder may elect and treat it as either. As if written, " Value 
received, in three months from date, pay the order of H. L. $500. 
(Signed) A. B. ;" and an address or memorandum at the bottom, 
"At Messrs. E. F. & Co." 

4. Of Bank-notes. — Bank-notes or bank-bills are promissory 
notes of a bank, payable to bearer ; and, like all notes to bearer, the 
property in them passes by delivery. They are intended to be used 
as money; and while a finder, or one who steals them, has no title 
himself against the owner, still, if he passes them away to a bona 



488 THE PROPERTY RIGHTS OF 

fide holder, — that is, a holder for value without notice or knowl- 
edge, — such owner holds them against the original owner. And if 
the bank pays them in good faith on regular presentment, the owner 
has no claim. They pass by a will bequeathing money. They are 
a good tender, unless objected to at the time because not money. 
Forged bills, given in payment, are a mere nullity. Bills of a bank 
which has failed, but of which the failure is unknown to both parties, 
are now generally put on the footing of forged or void bills. But if 
the receiver of them, by holding them, and by a delay of returning 
or giving them up, injures the payer and impairs his opportunity or 
means of indemnity, the receiver must then lose them. 

5. Of Checks on Banks. — A check on a bank is undoubtedly a 
bill of exchange ; but usage and the nature of the case have intro- 
duced some important qualifications of the general law of bills in its 
application to checks. A check requires no acceptance, because a 
bank, after a customary or reasonable time has elapsed since deposit, 
and while still in possession of funds, is bound to pay the checks of 
the depositors. The drawer of a check is not a surety, as is the 
drawer of a bill, but a principal debtor, like the maker of a note. 
Nor can a drawer complain of any delay whatever in the present- 
ment; for it is an absolute appropriation, as between the drawer and 
the holder, to the holder of so much money in the banker's hands ; 
there it may lie at the holder's pleasure. But delay is at the holder's 
risk ; for if the bank fails after he could have got his money on the 
check, the loss is his. If the bank, before he presents his check, pay 
out all the money of the drawer on other checks, he may then look 
to the drawer. 

If one who holds a check as payee, or otherwise, transfers it to 
another, he has a right to insist that the check shall be presented in 
the course of the banking hours of that day, or at farthest the next ; 
that is, he is not responsible for the failure of the bank to pay, unless 
it is so presented, provided it would then have been paid. And if 
the party receiving the check live elsewhere than where the bank is, 
it seems that he should send it for collection the next day ; and if to 
an agent, the agent should present it, at latest, in the course of the 
day after he receives it. If the check be drawn when the drawer 
neither has funds in the bank, nor has made any arrangement by 
which he has a right to draw the check, the drawing it is a fraud, 
and the holder may bring his action at once against the drawer, 
without presentment of the check at the bank, or notice of non-pay 
ment. 

Checks are seldom accepted. But they are often marked by the 
bank as good ; and this binds the bank as an acceptor. 



A CITIZEN OF THE UNITED STATES. 489 

Checks are usually payable to bearer, but may be and often are 
drawn payable to a payee or his order ; for this guards against loss 
or theft, because the check will not be paid unless the payee writes 
his name on it ; and it gives to the drawer, when the check is paid 
and returned by the bank to him, what is the same as the receipt 
of the payee. Generally, a check is not payment until it is cashed ; 
then it is payment if the money was paid to the creditor, or the 
check had passed through his hands. A bank cannot maintain a 
claim for money lent and advanced, merely by showing the defend- 
ant's check paid by them ; because the general presumption is, that 
the bank paid the check because it was drawn by a depositor against 
funds. 

While the death of a drawer countermands his check, if the 
bank pay it before notice of the death reaches them, they are dis- 
charged. This would seem to be almost a necessary inference from 
the general purpose of banks of deposit, and the use which mer- 
chants make of them. 

If a bank pay a forged check, it is so far its own loss, that the 
bank cannot charge the money to the depositor whose name was 
forged. But the bank could recover the money back from one who 
presented a forged check, and was paid, provided the payee, if inno- 
cent, loses no opportunity of obtaining indemnity in the mean time ; 
that is, provided the payee loses nothing by the bank's paying 
the check; and provided he can be put in as good a position 
as if the bank had refused to pay it. But if somebody must 
lose, the bank should, because it is the duty of the bank to know 
the writing of its own depositors. If it pay a check of which 
the amount has been falsely and fraudulently increased, it can 
charge the drawer only with the original amount. But if the 
drawer himself causes or facilitates the forgery, as by so carelessly 
writing it or leaving it in such hands that the forgery or alter- 
ation is easy, so that it may be called his fault, and the bank is 
innocent, then the loss falls on the drawer. If many persons, not 
partners, join in a deposit, they must join in a check ; but if one or 
more abscond, a court of equity will permit the remainder to draw 
the money. 

6. Of Accommodation Paper. — An accommodation bill or note 
is one for which the acceptor or maker has received no considera- 
tion, but has lent his name and credit to accommodate the drawer, 
payee, or holder. Of course he is bound to all other parties pre- 
cisely as if there were a good consideration; for, otherwise, it would 
not be an effectual loan of credit. But he is not bound to the 
party whom he thus accommodates; on the contrary, that party is 



490 THE PROPERTY RIGHTS OF 

bound to take up the paper, or to provide the accommodation 
acceptor or maker, or indorser, with funds for doing it, or to indem- 
nify him for taking it up. And if, before the bill or note is due, the 
party accommodated provides the party lending his credit with the 
necessary funds, he cannot recall them ; and if he becomes bank- 
rupt, they remain the property of the accommodation acceptor, or 
maker, who, if sued on the bill or note, can charge the party accom- 
modated with the expense of defending the suit, even if the defence 
were unsuccessful, if he had any reasonable ground of defence, be- 
cause the defence was for the benefit of the party accommodated ; 
inasmuch as he must repay the accommodating party if he pays the 
bill or note. 

7. Of Foreign and Inland Bills. — Bills of exchange may be 
foreign bills, or inland bills. Foreign bills are those which are 
drawn or payable in a foreign country ; and for this purpose, each 
of our States is foreign to the others. Inland bills are drawn and 
payable at home. Every bill is, on its face, an inland bill, unless it 
purports to be a foreign bill. If foreign on its face, evidence is ad- 
missible to show that it was drawn and payable at home. If a bill 
be drawn and accepted here, but afterwards actually signed by the 
drawer abroad, it is a foreign bill. If a foreign bill be not accepted, 
or be not paid at maturity, it should at once be protested by a notary 
public. Inland bills are generally, and promissory notes frequently, 
protested ; but this is not generally required by the law. The 
holder of a foreign bill, after protest for non-payment, or for non- 
acceptance, may sue the drawer and indorser, and recover the face 
of the bill, and, in addition thereto, his damages, which damages, on 
protest, are generally adjusted in this country by various statutes, — 
which give greater damages as the distance is greater ; and an estab- 
lished usage would supply the place of statutes if they were wanting. 

8. Of the Law of Place. — The different States of the Union 
are, as to questions arising under mercantile law, foreign countries 
as to each other. Important questions sometimes arise in the case 
of foreign bills (as well as in some other cases, for which see the 
chapter on the Law of Place), dependent upon what is called the 
law of place, the Latin phrase for which, lex loci, is often used. In 
general, every contract is to be governed by the law of the place 
where it is made. Thus, if a bill is drawn in France, and there 
indorsed in a way which is sufficient here, but insufficient there r the 
indorsement would here be held void. But if a contract entered 
into in one place is to be performed in another, as in the case of a 
note dated or a bill drawn in one State, but payable in another, 



A CITIZEN OF THE UNITED STATES. 491 

the prevailing rule is, that the law of the place where the note is 
payable construes and governs the contract. Therefore, if a bill be 
drawn in England, payable in France, the protest and notice of 
dishonor must be regulated by the law of France. But one who 
makes such a note may elect, for many purposes, which law shall 
govern it. Thus, if he makes it in Chicago, and it is payable in 
New York, he may promise to pay the legal interest of Chicago, 
and will be bound to this payment in New York, although the legal 
interest in New York is less ; but if there be no such express 
promise, the interest payable will be that of the place where the 
note is payable. 

While the law of the place of the contract interprets and con- 
strues it as a debt, and determines how large the debt is or how 
much is due upon it, the law of the place where it is put in suit — 
which is called the law of the forum, or court — determines all 
questions as to remedy ; that is, all questions which relate to the 
legal means of recovering the debt. Thus, in general, the statutes 
of limitation of the place of the court are applied. But if a cause 
of action relating to any special subject-matter which has a definite 
location, as a parcel of land has, be barred by a statute of limita- 
tion where the subject-matter is situated, it is barred everywhere. 
A promisor, not subject to arrest in the country where the note is 
made, may be arrested under the laws of the country where the note 
is sued. 

It will always be presumed, in the absence of testimony, that 
the law of a foreign country is the same with that of the country in 
which the suit is brought. If a difference in this respect is a ground 
of defence, or of action, it must be proved by evidence. 



SECTION m. 
THE CONSIDERATION OF NEGOTIABLE PAPER. 

1. Exception to the Common-law Rule, in the Case of Negotiable 
Paper. — By the common law of England and of this country, as 
we have seen, no promise can be enforced, unless made for a con- 
sideration, or unless it be sealed. But bills and notes payable to 
order, that is, negotiable, are, to a certain extent, an exception to 
this rule. Thus, an indorsee cannot be defeated by the promisor 
showing that he received no consideration for his promise ; because 
the promisor made an instrument for circulation as money ; and it 
would be fraudulent to give to paper the credit of his name, and 
then refuse to honor it. But as between the maker and the payee, 
or between inclorser and indorsee, and, in general, between any two 



492 THE PROPERTY RIGHTS OF 

immediate parties, the defendant may rely on the want of considera- 
tion, — that is, if an indorsee sues the maker, and the maker says he 
had no consideration for the note, — this is no defence ; but if the in- 
dorsee sues his indorser, and the indorser shows that the indorsee 
paid him nothing, this would be a good defence ; and so it would be 
if the payee sued the maker. So, if a distant indorsee has notice or 
knowledge, when he buys a note, that it was made without consid- 
eration, he cannot recover on it against the maker, unless it was an 
accommodation note, or was intended as a gift. 

Thus, if A supposes that a balance is due from him to B, and gives 
B his negotiable note for the amount, and afterwards discovers that 
the balance is the other way, B cannot recover of A ; nor can any 
third or more distant indorsee who hioics these facts before buying 
the note. But if A gives B his note wholly without consideration, 
for the purpose of lending him Ltis credit, or for the purpose of 
making him a gift to the amount of the note, and C buys the note 
with a full knowledge of the facts, he will nevertheless hold A, 
although B could not. If the note was bought honestly for a fair 
price, the buyer should recover its whole amount. Every promis- 
sory note imports a consideration ; that is, none, in the first place, 
need be proved ; but when want of consideration is relied on in 
defence, and evidence is given on one side and the other, the bur- 
den of proof is on the plaintiff to satisfy the jury that a considera- 
tion was given. 

If an indorser, sued by an indorsee, shows that the note was 
originally made in fraud, he may require the holder to prove that 
he paid consideration; but if this be proved, he must pay the 
whole of the note, unless he was himself defrauded by the holder. 
And if an accommodation note be discounted in violation of the 
agreement of the party accommodated, the holder can still recover, 
provided he received the note in good faith, and for valuable con- 
sideration. 

2. Of " Value received." — " Value received " is usually written, 
and therefore should be ; but is not necessary. If not written, it 
will be presumed by the law, or may be supplied by the plaintiff's 
proof. If expressed, it may be denied by the defendant, and dis- 
proved. And if a special consideration be stated in the note, the 
defendant may prove that there was no consideration, or that the 
consideration was different. If " value received " be written in a 
note, it means received by the maker from the payee ; if the note 
be payable to the bearer, it means received by the maker from the 
holder. In a bill, " value received " means that the value was 
received from the payee by the drawer. But if the bill be payable 



A CITIZEN OP THE UNITED STATES. 493 

to the drawer's own order, then it means received by the acceptor 
from the drawer. 

3. What the Consideration maybe. — A valuable consideration 
may be either any gain or advantage to the promisor, or any loss or 
injury sustained by the promisee at the promisor's request. A pre- 
vious debt, or a fluctuating balance, or a debt due from a third per- 
son, might be a valuable consideration. So is a moral consideration, 
if founded upon a previous legal consideration; as, where one 
promises to pay a debt barred by the statute of limitations, or by 
infancy. But a merely moral consideration, as one founded upon 
natural love and aifection, or the relation of parent and child, is no 
legal consideration. 

No consideration is sufficient in law if it be illegal in its nature ; 
and it may be illegal because, first, it violates some positive law, as, 
for example, the Sunday law, or the law against usury. Secondly, 
because it violates religion or morality, as an agreement for future 
illicit cohabitation, or to let lodgings for purposes of prostitution, 
or an indecent wager; for any bill or note founded upon either of 
these would be void. Thirdly, if distinctly opposed to public 
policy, as an agreement in restraint of trade, or injurious to the 
revenue ; or in restraint of marriage ; or for procurement of mar- 
riage; or for suppressing evidence; or withdrawing a prosecution 
for felony or public misdemeanor. 



SECTION IV. 
THE RIGHTS AND DUTIES OF THE MAKER. 

The maker of a note or the acceptor of a bill is bound to pay 
the same at its maturity, and at any time thereafter, unless the 
action be barred by the statute of limitations, or he has some other 
defence under the general law of contracts. As between himself 
and the payee of the note or bill, he may make any defences which 
he could make on any debt arising from simple contract, as want 
or failure of consideration ; payment, in whole or in part ; set-off; 
accord and satisfaction ; or the like. The peculiar characteristics of 
negotiable paper do not begin to operate, so to speak, until the 
paper has passed into the hands of third parties. Then, the party 
liable on the note or bill can make none of these defences, unless 
the time or manner in which it came into possession of the holder 
lays him open to these defences. But the law on this subject may 
better be presented in our next section. 



494 THE PROPERTY RIGHTS OF 



SECTION V. 

THE RIGHTS AND DUTIES OF THE HOLDER OF NEGOTI- . 
ABLE PAPER. 

1. What a Holder may do with a Bill or Note. — An indorsee 
has a right of action against all whose names are on the bill when 
he received it. And if one delivers a bill or note which he ought 
to indorse and does not, the holder has an action against him for 
not indorsing, or may proceed in a court of equity to compel him 
to indorse. If- a bill comes back to a previous indorser, he may 
strike out the intermediate indorsements and sue in his own name, 
as indorsee; but he has, in general, no remedy against the inter 
mediate parties, because, if he made them pay as indorsers to 
him, they would make him pay as indorser to them. If, however, 
the circumstances are such that they, if compelled to pay, would 
have no right against him as an indorser to them, as, for example, if 
he indorsed it " without recourse," then he may have a claim against 
them. 

The holder of a bill indorsed and deposited with him for collec- 
tion, or only as a trustee, can use it only in conformity with the 
trust. And if the indorsement express that it is to be collected for 
the indorsees use, or use any equivalent language, this is notice to 
any one who discounts it; and the party discounting the paper 
against this notice will be obliged to deliver the note, or pay its 
contents, if collected, to the indorser. Thus, Mr. Sigourney, a mer- 
chant in Boston, remitted to Mr. Williams, a London banker, for 
collection, a bill of exchange indorsed by Sigourney, and over his 
name was written, " Pay to Williams or order for my use." Wil- 
liams had the bill discounted for his own benefit by his bankers, and 
failed ; and the English court held that the indorsement showed that 
the bill did not belong to Williams, and that the discounters had no 
right to discount it for him ; and they were obliged to pay the amount 
of it to Sigourney 

2. Of a Transfer after Dishonor of Negotiable Paper. — Until 

the time has come when a note or bill is payable, everybody 
has a right to believe that it has not been paid, and will be paid 
at maturity, and may purchase it in that belief. But as soon as it 
is overdue, the date shows this, and every person must know that 
it is either paid, and so extinguished, or that it has not been paid, 
and therefore is dishonored, and that there may be good reasons 
why it was not paid, or good defences against it. He, therefore, 



A CITIZEN OF THE UNITED STATES. 405 

now takes it at his own peril ; and therefore a holder who took the 
note after it became due is open to many of the defences which the 
promisor could have made against the party from whom the holder 
took it ; because, having notice that the bill or note is dishonored, 
he ought to have ascertained whether any, and, if so, what defence 
could be set up-. 

So, too, if an indorsee takes the note or hill before it is due, but 
with notice or knowledge of fraud or other good defence which 
could be made against his indorser if he sued it, it is a general rule 
that the same defence may be made against him. 

A promissory note payable on demand is considered as intended 
to be a continuing security, and therefore as not overdue, unless 
very old indeed, without some evidence of demand of payment and 
refusal. But it is not so with a check; for this should be presented 
without unreasonable delay. 

3. Of Presentment for Acceptance. — It is most important to the 
holder of negotiable paper to know distinctly what his duties are 
in relation to presentment of a bill of exchange for acceptance, or 
of a bill or note for payment, and notice to others interested in case 
of non-acceptance or non-payment. 

It is always prudent for the holder of a bill to present it for 
acceptance without delay ; for, if it be accepted, he has new secu- 
rity ; if not, the former parties are immediately liable ; and it is but 
just to the drawer to give him as early an opportunity as may be 
to withdraw his funds or obtain indemnity from a debtor who will 
not honor his bills. And if a bill is payable at sight, or at a cer- 
tain period after sight, there is not only no right of action against 
anybody until presentment, but, if this be delayed beyond a reason- 
able time, the holder loses his remedy against all previous parties. 
And although the question of reasonable time is generally one only 
of law, yet, in this connection, it is treated as so far a question of 
fact, that it is submitted to the jury. There is no certain rule 
determining what is reasonable time in this respect. If a bill of 
exchange be payable on demand, it is not like a promissory note, 
but must be presented within a reasonable time, or the drawer will 
be discharged. A holder may put a bill payable after sight into 
circulation, without presenting it himself; and in that case, if a 
subsequent holder presents it, a longer delay in presentment 
would be allowed than if the first holder had kept it in his own 
possession. 

The presentment should be made during business hours ; bnt in 
this country they extend through the day and until evening, except- 
ing in the case of banks. Any distinct usage established where the 



496 THE PROPERTY RIGHTS OF 

presentment is made would probably be received in evidence, and 
permitted to affect the question. 

Ill health, or other actual impediment without fault, may excuse 
delay on the part of the holder; but the request of the drawer to 
the drawee not to accept does not excuse non-presentment for ac- 
ceptance. 

Presentment of a bill for acceptance should be made to the 
drawee himself, or to his agent authorized to accept. And when it 
is presented, the drawee may have a reasonable time to consider 
whether he will accept, during which time the holder is justified in 
leaving the bill with him; and this time would be as much as 
twenty-four hours, unless the mail goes out before. But if the 
holder gives more than twenty-four hours for this purpose, or the 
mail goes out before, he should inform the previous parties of it. 
If the drawee has changed his residence, the holder should use due 
diligence to find him ; and what constitutes due or reasonable dili- 
gence is a question of fact for a jury. And if he be dead, the holder 
should ascertain who is his personal representative, if he has one, 
and present the bill to him. If the bill be drawn upon the drawee 
at a particular place, it is regarded as dishonored if the drawee has 
absconded, so that the bill cannot be presented for acceptance at 
that place. When we come to speak of notice, it will be seen why 
these rules are important ; for a drawer is liable on the bill if the 
drawee does not accept, and it is reasonable that he should know 
at once if he is made liable by the drawee's refusal to accept, so 
that he may save himself from loss if he can. 

4. Of Presentment for Demand of Payment. — The next question 
relates to the duty of demanding payment ; and here the law is much 
the same in respect both to notes and to bills. 

The universal rule of the law-merchant is, that the indorsers of 
negotiable paper are supposed to agree to pay it only if the maker 
or previous indorsers do not, and provided due measures are taken 
by the holder to get it paid by those who ought, in the first place, to 
pay it. Every holder of negotiable paper can hold it as long as he 
likes, and not lose his claim against the maker of a note, or the ac- 
ceptor of a bill, unless he holds it more than six years, and the stat- 
ute of limitations bars his claim. The reason is, that the maker or 
acceptor promises directly, and not merely to pay if another does 
not. But every indorser of a note or bill, and every drawer of a 
bill, only promises to pay if a maker or acceptor or some previous 
indorser does not. If there is a bill of exchange with six indorsers, 
the last promises in law to pay it only if the acceptor, the drawer, 
and the five previous indorsers do not pay. He has therefore a right 



A CITIZEN OF THE UNITED STATES. 497 

that a demand according to law should be made against every one 
of these persons, and that their refusal to pay should be notified to 
him forthwith, so that he may secure himself if he can. And the 
law-merchant is very rigorous and precise in defining what demand 
should be made by the holder, and when and how demand should 
be made on every prior party, in order to hold any subsequent 
party ; and also as to what notice of the demand and refusal of the 
prior party should be given to any subsequent party to whom the 
holder looks for payment. 

A demand is sufficient if made at the usual residence or place of 
business of the payer, either of himself, or of an agent authorized to 
pay ; and this authority may be inferred from the habit of paying, 
especially if the agent be a child, a wife, or a servant. The demand 
should not be made in the street, although a demand there would 
probably be held good, unless objected to at the time because made 
there. When a demand is made, the bill or note should be ex- 
hibited ; and if lost, a copy should be exhibited, although this is 
not absolutely necessary. And when the payer calls on the holder, 
and declares to him that he shall not pay, and desires him to give 
notice to the indorsers, this constitutes a demand and refusal, 
provided this declaration be made at the maturity of the paper; but 
not if it was made before maturity, because the payer may change 
his intention. 

Bankruptcy or insolvency of the payer is no excuse for non- 
demand ; although the shutting up of a bank may be regarded as a 
refusal to all their creditors to pay their notes. Absconding of the 
payer is generally a sufficient excuse ; but if the payer has shut up 
his house, the holder must nevertheless inquire after him, and find 
him, if he can, by proper efforts. Even in case of absconding, it is 
always better to go through the formality of making a demand at 
the payer's last residence or place of business; and this is held neces- 
sary in some States. If the payer be dead, demand should be 
made at his house, unless he have personal representatives, and in 
that case, of them. And if the holder die, presentment should be 
made by his personal representatives ; that is, by his executor or 
administrator. 

If the drawer has no effects in the hands of the drawee, and has 
no arrangement or understanding which gives him a right to draw, 
non-presentation for payment is not a defence which he can make 
if sued on the bill. 

Impossibility of presenting a bill or note for payment, without 
the fault of the holder, as the actual loss of a bill, or the like, wilt 
excuse some delay in making a demand for payment; but not more 
than the circumstances require. And the mere mistake of the holder 

32 



L 



49S THE PROPERTY RIGHTS OF 

as to the time, place, person, or manner, is no excuse, because he has 
no right to make mistakes to the injury of other people. 

In this country, all negotiable paper payable at a time certain is 
entitled to grace, which here means three days' delay of payment, 
unless it be expressly stated and agreed that there shall be no grace; 
and a presentment for payment before the last day of grace is pre- 
mature, the note not being due until that day. If the last day of 
grace falls on a Sunday, or on a legal holiday, the note is due on the 
Saturday, or other day before the holiday. But if there be no grace, 
and the note falls due on a Sunday, or other holiday, it is not payable 
until the next day. 

Generally, if a bill or note be payable in or after a certain num- 
ber of days from date, sight, or demand, in counting these days, the 
day of date, sight, or demand is excluded, and the' day on which it 
falls due included. And the law would supply the word "from" 
if the word were not used. Thus, a note dated January 1, and 
payable in " twenty days," would be held payable in twenty days 
(and three days' grace) after the day of the date ; that is, on the 24th. 
If a note is made payable in one or more months, this means calen- 
dar months, whether shorter or longer. If made on the 13th of 
December, and payable in two months, it is payable on the 13th of 
February, and grace ; that is, on the 16th. But if so many days 
are named, they must be counted, whether they are more or less 
than a month. Thus, if the above note were payable in sixty days, 
it would be due on the 11th and grace, or on the 14th of February. 
If dated 13th January, and payable in sixty days, it would be due 
on the 14th of March with grace, or on the 17th. If dated on the 
28th o£ October, or the 29th, or the 30th, or the 31st, and is pay- 
able in four months, it is in either case (the next year not being leap 
year) payable on the 28th of February, and with grace, on the 3d 
of March. And notes dated on the 31st of any month, payable in 

months, and falling due in a month of but thirty days, are due 

on the 30th, with grace. 

Although payment must be demanded promptly, that is, on the 
day on which it is due, it need not be done instantly ; a holder has 
all the business part of the day in which the bill or note falls due to 
make his demand in. 

Bills and notes payable on demand should be presented for pay- 
ment within a reasonable time. If said to be " on interest," this 
strengthens the indication that they were intended to remain for a 
time unpaid and un demanded. But to hold indorsers, they should 
still be presented within whatever time circumstances may make a 
reasonable time ; and this is such a time as the interests and safety 
of all concerned may require ; and it may be a few days, or one 



A CITIZEN OF THE UNITED STATES. 499 



or two weeks. A bill or note in which no time of payment is 
expressed is held to be payable on demand ; and evidence to prove 
it otherwise is inadmissible. 

The holder of a cheek should present it at once ; for the drawer 
has a right to expect that he will ; it should, therefore, be presented, 
or forwarded for presentment, in the course of the day following 
that in which it was received, or, upon failure of the bank, the 
holder will lose the remedy he would otherwise have had against 
the person from whom he receives it. If the drawer of the check 
had no funds, he is liable always. 

Every demand of payment should be made at the proper place, 
which is either the place of residence or of business of the payer, 
and within the proper hours of business. If made at a bank after 
hours of business, if the officers are there, and refuse payment for 
want of funds, the demand is sufficient. 

A note payable at a particular place should be demanded at 
that place ; and a bill drawn payable at a particular place should 
be demanded there, in order to charge the drawer of a bill, and the 
indorsers of a bill or note. But in this country an action may be 
maintained against the maker or acceptor without such demand; 
but the defendant may discharge himself of damages and costs 
beyond the amount of the paper, by showing that he was ready at 
that place with funds. If a note is payable at any of several different 
places, presentment at any one of them will be sufficient. If a bill 
which is drawn payable generally be accepted payable at a particular 
place, the holder may and should so far regard this as non-acceptance 
that he should protest and give notice. But if this limited accept- 
ance is assented to and received, it must be complied with by the 
holder, and the bill must be presented for payment at that place, or 
the drawer and indorsers are discharged. 

If payable at a banker's, or at the house or counting-room of 
any person, and such banker or person becomes the owner at 
maturity, this is demand enough ; and if there are no funds deposited 
with him for the payment, this is refusal enough. If any house be 
designated, a presentment to any person there, or at the door if the 
house be shut up, is enough. 

If this direction be not in the body of the note, but added at 
the close, or elsewhere, as a memorandum, it is not part of the con- 
tract, and should not be attended to. 

If the payer has changed his residence, he should be sought 
for with due diligence ; and, if he has absconded, it is better to 
make the demand at his last place of residence or business. 

Where a bill or note is not presented for payment, or not pre- 
sented at the time, or to the person, or in the place, or in the way, 






000 THE PROPERTY RIGHTS OF 



required by law, all parties but the acceptor or maker are dis- 
charged, for the reasons before stated. 

5. Of Protest and Notice. — If a bill of exchange be not accepted 
when properly presented for that purpose, or if a bill or note, when 
properly presented for payment, be not paid, the holder has a further 
duty to perform to all who are responsible for payment. In case of 
non-payment of a foreign bill, there should be a regular protest by 
a public notary ; but this is not strictly necessary in the case of an 
inland bill, or a promissory note, whether foreign or inland. But 
in practice, all bills if not accepted, and all bills and notes if un- 
paid, are protested. By a foreign bill is meant a bill drawn in one 
State or country, and payable in another. But notice of non-pay- 
ment should be given to all antecedent parties, equally, and in the 
same way, in the case of both bills and notes. 

The demand and protest must be made according to the laws of 
the place where the bill is payable. It should be made by a 
notary public, who should present the bill himself; but, if there 
be no notary public in that place or within reasonable reach, it 
may be made by any respectable inhabitant in the presence of 
witnesses. 

The protest should be noted on the day of demand and refusal, 
and may be filled up afterwards, even so late as at the trial. 

The loss of a bill is not a sufficient excuse for not protesting it. 
But a subsequent promise to pay by a drawer or indorser is held to 
imply, or be equal to, a previous protest and notice to him. 

The notarial seal is, of itself, evidence of the dishonor of a 
foreign bill, but not of an inland bill. And no collateral statement 
in the certificate is evidence of the fact therein stated ; thus the 
statement by a notary, that the drawee refused to accept or pay 
because he had no funds of the drawer, is no evidence of the 
absence of such funds. 

Notice must be given even to one who has knowledge. No par- 
ticular form is necessary ; it may be in writing, or oral ; all that is 
absolutely essential is, that it should designate the note or bill with 
sufficient distinctness, and state that it has been dishonored, and 
also that the party notified is looked to for payment ; but it has 
been held that the notice to the party bound to pay, when given 
by the immediate holder of the bill, sufficiently implies that he is 
looked to. Notice of protest for non-payment is sufficient notice 
to indorsers of demand and refusal. How distinctly the note or 
bill should be described cannot be precisely defined. It is enough 
if there be no such looseness, ambiguity, or misdescription as might 
mislead a man of ordinary intelligence ; and if the intention was to 



A CITIZEN OF THE UNITED STATES. 501 

describe the true note, and the party notified was not actually mis- 
led, this would always be enough. The notice need not state for 
whom payment is demanded, nor where the note is lying ; and even 
a misstatement in this respect may not be material if it do not 
actually mislead. 

No copy of the protest need be sent to indorsers ; bnt informa- 
tion of the protest should be given. 

If the letter be properly put into the post-office, any miscarriage 
of the mail does not affect the party giving notice. The address 
should be sufficiently specific. Only the surname, — as " Mr. Ames," 
— especially if sent to a large city, would not, in general, be 
enough. *If a letter, however generally directed, can be shown to 
have reached the right person at the right time, it is sufficient. The 
postmarks are strong evidence that the letter was mailed at the very 
time these marks indicate ; but this evidence may be rebutted, that 
is, contradicted. 

A notice not only may, but should, be sent by the public post. 
It may, however, be sent by a private messenger; but is not suffi- 
cient if it do not arrive until after the time at which it would have 
arrived by mail. It may be sent to the town where the party 
resides, or to another town, or to a more distant post-office, if it is 
clear that he may thereby receive the notice earlier. And if the 
notice is sent to what the sender deems, after due diligence, the 
nearest post-office, this is enough. If the parties live in the same 
town, notice should not be sent by mail. 

The notice should be sent either to the place of business or 
to the residence of the party notified. But if one directs a notice 
to be sent to himself elsewhere than at home, it may be so sent, 
and bind not only him, but prior parties, although time is lost by so 
sending it. 

The notice of non-payment should be sent within reasonable 
time ; and in respect to negotiable paper, the law-merchant defines 
this within very narrow limits. If the parties live in the same 
town, notice must be given or sent so that the party to whom it is 
sent may receive the notice in the course of the day next after that 
in which the party sending has knowledge of the fact. If the 
parties live in different places, the notice must be sent as soon as by 
the first practicable mail of the next day, or the next mail, if there 
be none on the next day. 

Each party receiving notice has a day, or until the next post 
after the day in which he receives it, before he is obliged to send the 
notice forward. Thus, if there be six indorsers, and the note is due 
on the 10th of May, in New York, and is then demanded and un- 
paid, the holder -nay send it by any mail which leaves New York 



502 THE PROPERTY RIGHTS OF 

on the 11th of May, to the last indorser, wherever he lives; and 
that indorser may send it to the indorser immediately before him, 
by any mail on the day after he receives it ; and so may each of the 
parties receiving notice; and all the parties to whom notice is sent 
in this way will be held. So, too, a banker, with whom the paper is 
deposited tor collection, is considered a holder, and entitled to a day 
to give notice to the depositor, who then has a day for his notice to 
antecedent parties. The different branches of one establishment 
have been hel 1 distinct holders for this purpose, and each to be 
entitled to a day. 

Heither Sunday nor any legal holiday is to be computed in reck- 
oning the time within which notice must be given. 

There is no presumption of notice : and the plaintiff must prove 
that it was given, and was sufficient. Thus, proving that it was 
given in "two or three days" is insufficient, if two would have been 
right, but three not. 

Notice should be given only by a party to the instrument, who 
is liable upon it, and not by a stranger ; and it has been held that 
notice could not be given by a first indorser, who, not having been 
notified, was not himself liable. A notice by any party liable will 
operate to the benefit of all antecedent or subsequent parties; that 
is, will hold them all to the original holder of the note, if the origi- 
nal holder gave notice properly to the party nearest to him. The 
notice may be given by any authorized agent of a party who could 
himself give notice. 

Notice must be given to every antecedent party who is to be 
held. And we have seen that this may be given by a holder to the 
first party liable, and by him to the next, &c. But the holder may 
always give notice to all antecedent parties ; and it is always pru- 
dent, and, in this country, usual, to do so ; for the holder loses all 
remedy against all those who are discharged by the failure of any 
one receiving notice to transmit it properly. But if a holder under- 
takes to notify all the antecedent parties, he must notify all as soon 
as he was obliged to notify the party nearest to him ; that is, the 
day after the dishonor of the note. We mean by this, that every 
party has a day; so that, if there be six indorsers, if the first indorser 
is notified on the seventh day from the dishonor, it is enough if the 
holder took his day to notify the sixth indorser, and that indorser his 
day to notify the fifth, and so on. But the holder has nobody's day 
but his own ; and if he undertakes to notify all the parties, he must 
notify them all on the first day after the non-payment. If the holder 
notifies only the last indorser, and that indorser neglects to notify 
previous indorsers, the holder can hold only the indorser whom he 
notified. 



A CITIZEN OF THE UNITED STATES. 503 

Notice may be given personally to a party, or to his agent au- 
thorized to receive notice, or left in writing at his home or place of 
business. If the party to be notified is dead, notice should be given 
to his personal representatives. A notice addressed to the "legal 
representative of," &c, and sent to the town in which the deceased 
party resided at his death, has been held sufficient. But a notice 
addressed to the party himself, when known to be dead, or to " the 
estate of," &c., would not be of itself sufficient, but might become so 
with evidence that the administrator or executor actually received 
the notice. 

If two or more parties are jointly liable on a bill as partners, 
notice to one is enough ; but, if the indorsers are not partners, notice 
should be given to each. 

One transferring by delivery, without indorsement, a note or bill 
payable to bearer, is not generally entitled to notice of non-payment, 
because, generally, he is not liable to pay such paper; but if the cir- 
cumstances of the case are such as to make him liable, then he must 
have notice, but is entitled not to the exact notice of an indorser, 
but only to such reasonable notice as is due to a guarantor. If, for 
instance, the paper was transferred as security, or even in payment 
of a pre-existing debt, this debt revives if the bill or note be dishon- 
ored ; and therefore there must be notice given of the dishonor. 

In general, a guarantor of a bill or note, or debt, is not entitled 
to such strict and exact notice as an indorser is entitled to, but only 
to such notice as shall save him from actual injury ; and he cannot 
make the want of notice his defence, unless he can show that the 
notice was unreasonably withheld or delayed, and that he has actu- 
ally sustained injury from such delay or want of notice. If an in- 
dorser give also a bond, or his own note, to pay the debt, he is not 
discharged from his bond or note by want of notice. 

In general, all parties to negotiable paper, who are entitled to 
notice, are discharged by want of notice. The law presumes them 
to be injured, and does not put them to proof. 

The right to notice may be waived by any agreement to that 
effect prior to the maturity of the paper. It is quite common for an 
indorser to write, " I waive notice," or " I waive demand," or some 
words to this effect. It should, however, be remembered that these 
rights are independent, and one does not imply the other. A waiver 
of notice of non-payment does not imply a waiver of demand ; there- 
fore, if an indorser writes on the note, " I waive notice," still he will 
be discharged if there be not a due demand on the maker. And it 
has been held that a waiver of protest is a waiver of demand, but 
not of notice. So if a drawer countermands his order, the bill should 
still be presented, but notice of dishonor need not be given to the 



504 THE PROPERTY RIGHTS OF 

drawer. Or, if a drawer has no funds, and nothing equivalent to 
funds, in the drawee's hands, and would have no remedy against the 
drawee or any one else, as the drawer cannot be prejudiced by want 
of notice, it is not necessary to give hira notice. But the indorser 
must still be notified ; and a drawer for the accommodation of the 
acceptor is entitled to notice, because he might have a claim upon 
the acceptor. 

Actual ignorance of a party's residence justifies the delay neces- 
sary to find it out, and no more ; and after it is discovered, the noti- 
fier has the usual time. 

Death or severe illness of the notifier or Ms agent is an excuse 
for delay ; but the death, bankruptcy, or insolvency of the drawee 
of a bill is no excuse. 

As the right to notice may be waived before maturity, so the want 
of notice may be cured afterwards by an express promise to pay ; 
and an acknowledgment of liability, or a payment in part, is evi- 
dence, but not conclusive evidence, of notice ; the jury may draw 
this conclusion from part payment, but are not bound to, even if the 
evidence be not rebutted. If the promise be conditional, and the 
condition be not complied with, the promise has been held to be still 
evidence of notice. Nor is it sufficient to avoid such promise that 
it was made in ignorance of the law ; but it is void if made in igno- 
rance of .the fact of non-notice. 



SECTION VI. 
THE RIGHTS AND DUTIES OF THE INDORSER. 

Only a note or bill payable to a payee or order is, strictly 

speaking, subject to indorsement. Those who write their names 
on the back of any note or bill are indorsers in one sense, and are 
sometimes called so, but are not meant in the law-merchant by the 
word " indorsers." 

The payee of a negotiable bill or note — whether he be also 
maker or not — may indorse it, and afterwards any person, or any 
number of persons, may indorse it. The maker promises to pay to 
the payee or his order ; and the indorsement is an order on the 
maker to pay the indorsee, and the maker's promise is then to pay 
the note to him. If the original promise was to the payee or order, 
this " or order," which is the negotiable element, passes over to the 
indorsee, though not written in the indorsement, and the indorsee 
may indorse, and so may his indorsee, indefinitely. 

Each indorser, by his indorsement, does two things : first, he 
orders the antecedent parties to pay to his indorsee ; and next, he 
engages with his indorsee that, if they do not pay, he will. 



A CITIZEN OF THE UNITED STATES. 505 - 

If the words " to order," or " to bearer," are omitted acciden- 
tally, and by mistake, tbey may be afterwards inserted witbout 
injury to the bill or note; and whether a bill or note is negotia- 
ble or not, is a question of law. 

By the law-merchant, bills and notes which are payable to 
order can be effectually and fully transferred only by indorse- 
ment. This indorsement may be in blank or in full. The writing 
of the name of a payee, — either the original payee or an indorsee, 
— with nothing more, is an indorsement in blank ; and a blank 
indorsement makes the bill or note transferable by delivery, in like 
manner as if it had been originally payable to bearer. After a note 
has been indorsed by a payee, any person may write his name on 
the note under that of the payee, and be held as indorser, — be- 
cause any subsequent holder may write over the name of the first 
indorser a direction to pay the note to the next signer, and this 
makes the next signer an indorsee, and so gives him a right to in- 
dorse ; and he or any holder may write over his name an order to 
pay the holder, or anybody else. If the indorsement consist not 
only of the name, but of an order above the name, to pay the note 
to some specified person, then it is an indorsement in full, and the 
note can be paid to no one else unless that person indorses it ; nor 
can the property in it be fully transferred, except by his indorse- 
ment ; and his indorsee may again indorse it in blank or in full. If 
the indorsement is, pay to A B only, or in equivalent words, A B is 
indorsee, but cannot indorse it over. 

Any holder for value of a bill or note indorsed in blank, whether 
he be the first indorsee or one to whom it has come through many 
hands, may write over any name indorsed an order to pay the con- 
tents to himself; and this makes it a special indorsement, or an 
indorsement in full. This is often done for security ; that is, to 
guard against the loss of the note by accident or theft. For the 
rule of law is, that negotiable paper transferable by delivery (whether 
payable to bearer or indorsed in blank) is, like money, the property 
of whoever receives it in good faith. The same rule has been ex- 
tended in England to exchequer bills, to public bonds payable to 
bearer, and to East India bonds ; and we think it would extend here 
to our railroad and other corporation bonds, and, perhaps, to all such 
instruments as are payable to bearer, whether sealed or not, and what- 
ever they may be called. If one has such an instrument, and it is 
stolen, and the thief passes it for consideration to a bona fide holder, 
this holder acquires a legal right to it, because the property and 
possession go together. But if the bill or note be specially indorsed, 
no person can acquire any property in it, except by the indorsement 
of the special indorsee. 



506 THE PROPERTY RIGHTS OF 

The written transfer of negotiable paper is called an indorse- 
ment, because it is almost always written on the back of the note ; 
but it has its full legal effect if written on the face. 

Joint payees of a bill or note, who are not partners, must all 
join in an indorsement. 

An indorser may always prevent his own responsibility by 
writing "without recourse," or other equivalent words, over his 
indorsement ; and any bargain between the indorser and indorsee, 
written or oral, that the indorser shall not be sued, is available by 
him against that indorsee ; but he cannot make this defence against 
subsequent indorsees who had no notice of the bargain before they 
took the note. 

Every indorsement and acceptance admits conclusively the 
genuineness of the signature of every party who has put his name 
upon the bill previously in fact, and who is also previous in order. 
By this is meant, that if an indorser — say a third indorser — is 
sued, he cannot defend himself by saying that the names of the 
maker and first and second Endorsers, or either of them, were forged; 
because by indorsing it himself he gives his indorsee a right to be- 
lieve that the previous signatures were genuine. And an acceptor 
cannot say that his drawers' name is forged; but he may say that an 
indorsement which was on the bill when he accepted it was forged ; 
because an indorsement of a bill comes properly and in order of law 
after acceptance. 

If a holder strike out an indorsement by mistake, he may re- 
store it ; if on purpose, the indorser is permanently discharged. 

A holder may bring his action against any prior indorser, 
either by making title through all the subsequent indorsements, 
or by filling any blank indorsement specially to himself, and suing 
accordingly ; but then he invalidates all the indorsements which 
are subsequent to that which he has made special to himself. 

One may make a note or bill payable to his own order, and 
indorse it in blank; and this is now very common in our com- 
mercial cities, because the holder of such a bill or note can transfer 
it by delivery, and it needs not his indorsement to make it negotia- 
ble further. A note, to the maker's own order, if not indorsed by 
him, is, strictly speaking, of no force against him. But there is 
some disposition in the courts to say that a holder of such a note 
may sue the maker as if the note were to bearer. 

A transfer by delivery, without indorsement, of a bill or note 
payable to bearer, or indorsed in blank, does not generally make 
the transferer responsible to the transferee for the payment of the 
instrument. Nor has the transferee a right to fall back, in case of 
non-payment, upon the transferer for the original consideration 



A CITIZEN OF THE UNITED STATES. 507 

of the transfer, if the bill were transferred in good faith, in ex- 
change for money or goods; for such transfer would be held to be 
a sale of the bill or note, and the purchaser takes it with all risk. 

An indorsement may be made on the paper before the bill 01 
note is drawn ; and such indorsement, says Lord Mansfield, " is a 
letter of credit for an indefinite sum, and it will not lie in the in- 
dorsees mouth to say that the indorsements were not regular." The 
same rule. applies to an acceptance on blank paper. So an indorse- 
ment may be made after or before acceptance, though strictly proper 
only after. 

A bill or note, once paid at or after maturity, ceases to be 
negotiable, in reference to all who had been discharged by the pay- 
ment. If issued again, it is like a new note without their names. If 
a bill or note is paid before it is due, it is valid in the hands of a 
subsequent bona fide indorsee, and must be paid to him. 

A portion of a negotiable bill or note cannot be transferred so 
as to give the transferee a right of action for that portion in his own 
name. But if the bill or note be partly paid, it may be indorsed 
over for the balance. 

After the death of a holder of a bill or note, his executor or ad- 
ministrator may transfer it by his indorsement. The husband who 
acquires a right to a bill or a note which was given to the wife, either 
before or after marriage, may indorse it. 

If the rule, that the same party cannot be plaintiff and de- 
fendant, prevents the action, as where A, B, & Co. hold the note 
of A, C, & Co., so that if a suit were brought A would be one of 
the plaintiffs and one of the defendants also, which cannot be, 
A, B, & Co. may indorse the note to D, who may then sue 
A, C, & Co. 



SECTION vn. 

THE RIGHTS AND DUTIES OF THE ACCEPTOR. 

Acceptance applies to bills, and not to notes. It is an engage- 
ment of the person on whom the bill is drawn to pay it according to 
its tenor. The usual way of entering into this agreement, or of ac- 
cepting, is by the drawee's writing his name across the face of the 
bill, and writing over it the word " accepted." But any other word 
of equivalent meaning may be used; and it may be written else- 
where, and it need not be signed, or the drawee's name alone on the 
bill may be enough. A written promise to accept a future bill, if it 
distinctly define and describe that very bill, has been held in thia 



508 THE PROPERTY RIGHTS OF 

country as the equivalent of an acceptance, if the bill was taken on 
the credit of such promise. 

A banker is liable to his depositor without acceptance of his 
checks, if he refuses to pay checks drawn against funds in his hands. 

If a bill is accepted by a part only of those jointly responsible, 
or joint drawees, it maybe treated by the holder as dishonored; but 
if not so treated, the parties accepting will be bound. 

An acceptance may be made after maturity, and will be treated 
as an acceptance to pay on demand. 

The acceptance may be cancelled by the holder ; and if this can- 
celling be voluntary and intended, it is complete and effectual ; but 
if made by mistake, by him or other parties, and this mistake can be 
shown, the acceptor is not discharged. And if the cancelling be by 
a third party, it is for the jury to say whether the holder authorized 
or assented to it. 

If a qualified acceptance be offered, the holder may receive or 
refuse it. If he refuses it, he may treat the bill as dishonored ; if he 
receives it, he should notify antecedent parties, and obtain their 
consent, without which they are not liable. But if he protests the 
bill as dishonored, for this reason, he cannot hold the acceptor upon 
his qualified acceptance. 

A bill drawn on one incompetent to contract, as from infancy, 
marriage, or lunacy, may be treated by the holder as dishonored. 

A bill can be accepted only by the drawee, — in person or by his 
authorized agent, — or by some one who accepts for honor. 



SECTION VIII. 
ACCEPTANCE OR PAYMENT FOR HONOR. 

If a bill be protested for non-acceptance or for non-payment, any 
person may accept it, or pay it for the honor either of the drawer 
or of any indorser. This he usually does by going with the bill 
before the notary public who protested the bill, and there declaring 
that he accepts or pays the bill for honor ; and he should designate 
for whose honor he accepts or pays it, at the time, before the notary 
public, and it should be noted by him. 

A general acceptance supra protest (which is the phrase used 
both by merchants and in law, meaning upon or after protest) for 
honor, is taken to be for honor of the drawer. The drawee himself, 
refusing to accept it generally, may thus accept for the honor of the 
drawer or an indorser. And after a bill is accepted for honor of 
one party, it may be accepted by another person for honor of another 



A CITIZEN OF THE UNITED STATES. 509 

party. And an acceptance for honor may be made at the interven- 
tion and request of the drawee. 

No holder is obliged to receive an acceptance for honor ; he may 
refuse it wholly. If he receive it, he should, at the maturity of the 
bill, present it for payment to the drawee, who may have been sup- 
plied with funds in the mean time. If not paid, the bill should be 
protested for non-payment, and then presented for payment to the 
acceptor for honor. 

The undertaking of the acceptor for honor is collateral only, 
being an engagement to pay if the drawee does not. It can only be 
made for some party who will certainly be liable if the bill be not 
paid ; because, by an acceptance or by a payment, properly made, 
for honor, supra protest, such acceptor or payer acquires an absolute 
claim against the party for whom he accepts or pays, and against 
all parties to the bill antecedent to him, for all his lawful costs, pay- 
ments, and damages, by reason of such acceptance or payment. 
This is an entire exception to the rule that no person can make him- 
self the creditor of another without the request or consent of that 
other; but it is an exception established by the law-merchant. 

The reason why bills of exchange are sometimes accepted or paid 
for honor is to save the party for whose honor this is done from the 
very heavy damages of a protested bill. 

In many of our States it is a common practice to give a promis- 
sory note, and include in it a confession of judgment, for the amount. 
A suit may then be brought on the note as soon as it is due and 
unpaid, and a judgment taken out at once without the delay of a 
trial; and execution may issue on the judgment. Sometimes by 
the same note the promisor waives or renounces the benefit or pro- 
tection of all exemption laws; and then the execution may be 
satisfied from any of his property that the sheriff can find 



(156.) 

FORM OF A JUDGMENT NOTE WITH WAIVER. 

$ 18 

(Time.) after date, for value received, 

promise to pay or bearer, dollars, with interest, 

and without defalcation or stay of execution. And do hereby 

confess judgment for the above sum, with interest and costs of suit, a 
release of all errors, and waiver of all rights to inquisition and appeal, and 
to the benefit of all laws exempting real or personal property from levy 
and sale. 

(Signature.} 



510 THE PROPERTY RIGHTS OF 

Sometimes, in addition to the above, the same note has below it 

a power of attorney, authorizing the attorney whose name is put 
into the blank left for that purpose to appear in court for the 
promisor, and confess judgment. Sometimes the power is given to 
an attorney whom the parties agree upon, and then no other attor- 
ney can confess the judgment. It is, however, far more usual, and 
better, to insert the name of an attorney, and add, as in the follow- 
ing form, " or any attorney of any court of record." 



(157.) 

JUDGMENT NOTE WITH WAIVER, AND POWER OF ATTORNEY. 

$ 186 

after date the subscriber of 

county of State of promise to pay to the 

National Bank of or order dollars, at their 

office, value received, with interest, at per cent per annum 

after due. 

Due 

Know all men by these presents, That the subscriber 

justly indebted to the National Bank of 

upon a certain promissory note, bearing even date herewith, 
for the sum of dollars, with interest, at the rate of 

per cent per annum, after due, and due day after date. 

Now, therefor r, In consideration of the premises do 

Hereby make, constitute, and appoint or any attorney of any 

court of record, to be true and lawful attorney, irrevocably 

for and in name , place, and stead, to appear in 

any court of record, in term time or in vacation, in any of the States or 
Territories of the United States, at any time after the said note becomes 
due, to waive the service of process, and confess a judgment in favor of 
the said National Bank of or their assigns or as- 

signees, upon the said note for the above sum and interest thereon, to the 
day of the entry of the said judgment, together with costs, and twenty 
dollars, attorney's fees, and also to file a cognovit for the amount thereof, 
with an agreement therein that no writ of error or appeal shall be prose- 
cuted upon the judgment entered by virtue hereof, nor any bill in equity 
filed to interfere in any manner with the operation of said judgment, and 
to release all errors that may intervene in the entering up of said judg- 
ment, or issuing the execution thereon; and also to waive all benefit of 
advantage to which may be entitled by virtue of any home- 

stead or other exemption law, now, or hereafter in force, in this or any 
other State or Territory, where judgment may be entered by virtue hereof. 



A CITIZEN OF THE UNITED STATES. 51 1 

Hereby ratifying and confirming all that said attorney may do 

by virtue hereof. 

Witness hand and seal, this day of 

A..D. 186 

in presence of 



(Signature.) (Seal.) 



Sometimes the note is followed on the same paper by a power to 
confess judgment, and a waiver of all right of exemption; both the 
power and the waiver extending beyond the above-written note, and 
covering other notes and bonds and other evidence of debt. 

(158.) 

JUDGMENT NOTE WITH FULLER WAIVER, AND POWER OF ATTORNEY. 

$ 18 

for value received, promise to pay to the order 

of the sum of dollars, with interest, in (time). 

(Signature.) 

Know all men by these presents, That whereas, the 

subscriber, now justly indebted to upon a certain 

promissory note, bearing even date herewith, for the sum of 
dollars, and cents, made payable to the order of the said 

and due and may from time to time hereafter become further 

or otherwise justly indebted to the said upon bonds, promis- 

sory notes, due bills, and other written evidences of debt, made, or to be 
made, indorsed or accepted by and held or owned by the said 

assignee or assignees hereof. 

Now, therefore, In consideration of the premises, and of the sum of 
one dollar to paid by the said the receipt whereof 

is hereby acknowledged, do hereby make, constitute, and 

appoint or any attorney of any court of record, to be 

true and lawful attorney, irrevocable, for and in 

name , place , and stead, to appear in and before any court of record, 
either in term time or in vacation, in any of the States or Territories oi 
the United States, at any time after the of said note, or oi 

any such bond, promissory note, due bill, or other written evidence of debt, 
so already made or to be made, indorsed, or accepted by as 

aforesaid, respectively, to waive sendee of process, and confess a judgment 
in favor of the said executors, administrators, assignee, or assign- 

ees, or the legal holder or holders of said note or of any one or more of 
such bonds, promissory notes, due bills, or other written evidences of debt, 
as aforesaid, for so much money as shall by the same appear to be due or 
owing thereon, with interest thereon according to the tenor and effect 
thereof respectively, together with costs; also, for dollars, 

attorney's fees, to be added to the amount due or owing on entering up 



512 THE PROPERTY RIGHTS OF 

judgment; also, to file a cognovit for the amount that maybe so due or 
owing, including attorney's fees as aforesaid, with an agreement therein 
that no writ of error or appeal shall be prosecuted upon the judgment 
entered up by virtue hereof, nor any bill in equity filed to restrain or in 
any manner interfere with the operation of said judgment, or any execu- 
tion issued or to be issued thereon, and to release all errors that may inter- 
vene in the entering up of any such judgment or issuing any execution 
thereon, and to consent, stipulate, and agree that any execution issued or 
to be issued upon such judgment, may be immediately levied upon, and 
satisfied out of any personal property which may have or own, 

and to waive and relinquish all right to have per- 

sonal property last taken and levied upon to satisfy such execution, and 
also to consent that execution may issue upon any such judgment immedi- 
ately. Hereby ratifying and confirming all that said attorney 
may do by virtue hereof. 

And, in consideration of the premises, do hereby stipulate, 

covenant, and agree with the said executors, administrators, 

and with the assignee, assignees, or the legal holder or holders of said 
note, or of any one or more of such bonds, promissory notes, due bills, or 
other written evidences of debt as aforesaid, that any execution so issued 
or to be issued as aforesaid, may first be levied upon and satisfied out of 
any personal property which may have or own, hereby expressly 

waiving all right to have personal property last taken and 

levied upon to satisfy such execution. 

Witness hand and seal , this day of 

a.d. 18 

(Signature). (Seal) 

In presence of 



CHAPTER XIX. 

AGENCY. 

SECTION I. 
AGENCY IN GENERAL. 

The relation of principal and agent implies that the principal 

acts by and through the agent, so that the acts in fact of the agent 
are the acts in law of the principal ; and only when one is authorized 
by another to act for him in this way, and to this extent, is he an 
agent. One w T ho is disqualified from contracting on his own account 
may act as the agent of another ; thus infants, married women, and 
aliens may act as agents, for others for many purposes. 



A CITIZEN OF THE UNITED STATES. 513 






A principal is responsible for the acts of his agent, not only when 
he has actually given full authority to the agent thus to represent 
and act for him, but when he has, by his words, or his acts, or both, 
caused or permitted the person with whom the agent deals to be- 
lieve him to be clothed with his authority. And a man may be thus 
held as a principal, either because he has in some way authorized 
all persons to believe that he has constituted some other man his 
agent, or because he has authorized only the party dealing with the 
supposed agent to so believe. For all responsibility of a principal 
for the acts of an agent rests upon two grounds, which are com- 
monly united, but either of which alone is sufficient : one, the giving 
of actual authority ; the other, such appearing to give authority as 
justifies those who deal with the supposed agent in believing that 
this authority was given him. 

A general agent is one authorized to represent his principal in 
all his business, or in all his business of a particular kind. A partic- 
ular agent is one authorized to do only a specific thing or a few 
specified things. It is not always easy to discriminate between 
these ; but it is often important, by reason of the rule, that the 
authority of a general agent is measured by the usual scope and 
character of the business he is empowered to transact. By appoint- 
ing him to do that business, the principal is considered as saying to 
the world that his agent has all the authority necessary to the doing 
of it in the usual way. And if the agent transcends his actual au- 
thority, but does not go beyond the natural and usual scope of the 
business, the principal is bound, unless the party with whom the 
general agent dealt knew that the agent exceeded his authority. For 
if an agent does only what is natural and usual in transacting busi- 
ness for his principal, and yet goes beyond the limits prescribed by 
him, it is obvious that the principal must have put particular and 
unusual limitations to his authority; and these cannot affect the 
rights of a third party who deals with the agent in ignorance of 
these limitations. But, on the other hand, the rule is, that, if an 
agent who is specially authorized to do a specific thing exceeds his 
authority, the principal is not bound ; because the party dealing with 
such agent must inquire for himself, and at his own peril, into the 
extent and limits of the authority given to the agent. Here, how- 
ever, as before, if the party dealing with the agent, and inquiring, as 
he should, into his authority, has sufficient evidence of this authority 
furnished to him by the principal, and, in his dealings with the agent, 
acts within the limits of the authority thus proved, he cannot be 
affected by any reservations and limitations made secretly by the 
principal, and wholly unknown to the person dealing with the 

agent. 

33 



514 THE PROPERTY RIGHTS OF 



SECTION II. 
HOW AUTHORITY MAY BE GIVEN TO AN AGENT. 

It may be given under seal, or in writing without seal, or orally ; 

if given by a written instrument, this instrument is called a power 
of attorney, of which we shall give various forms at the close of this 
chapter. An oral or written appointment not under seal authorizes 
the agent to make a written contract, but not to execute instruments 
under seal. But an instrument under seal, signed and sealed in the 
principal's presence, and by his request and authority, will be re- 
garded as the principal's deed, made by himself. One employed by 
another to act for him in the usual trade or business of the agent, as 
auctioneer, broker, or the like, acquires thereby authority to do all 
that is necessary or usual in that business. And if a person puts his 
goods into the custody of another whose ordinary and usual business 
it is to sell such goods, he authorizes the whole world to believe that 
this person has them for sale ; and any person buying them honestly, 
in this belief, would hold them. 

Therefore, if fraudulent by-bidding be procured or permitted by 
the auctioneer, even without the knowledge of the owner of the 
goods, the owner is answerable for this fraud of his agent, and the 
buyer has a right to refuse to take the goods. So neither party is 
bound until the agreement of sale is completed. Therefore the 
auctioneer may withdraw any article, and a bidder may withdraw 
any bid, until the article is " knocked down," but not afterwards ; 
for then the sale is completed, and the property in (or ownership 
of) the article passes to the buyer. 

If one is repeatedly employed to do certain things, — as a wife 
or a son to sign bills or receipts ; or a domestic servant to make pur- 
chases; or a merchant or broker to sign policies, and the like, — in 
all these cases, one dealing with the person thus usually employed 
is justified in believing him authorized to do those things with the 
assent and approbation of his employer, and in the same way in 
which he has done them ; but not in any other way. Thus, if a ser- 
vant is usually employed to buy, but always for cash, this implies no 
authority to buy on credit. 

An agency may be confirmed and established, and in fact created, 
by a subsequent adoption and ratification ; and a ratification relates 
back to the original transaction. A corporation is bound by the 
ratification of an agent's acts, in the same manner as an individual 
would be. But no ratification is effectual to bind the principal, 
unless made by the principal with a knowledge of all the material 



A CITIZEN OF THE UNITED STATES. 51 & 

facts. And there can be ratification only where the act is done by 
one purporting to be an agent, or by an assumed authority. Gen- 
erally, one who receives and holds a beneficial result of the act 
of another as his agent, is not permitted to deny such agency ; and 
in some cases this is extended even to acts of such agent under 
seal. 

Thus, if an agent sell under seal property of a supposed princi- 
pal, an individual or a corporation, and receive payment, and hand 
this over to the principal, if the principal could show that the agent 
had no authority, he might avoid the sale, and recover the property ; 
but he could not do this and also hold the money paid for it. And 
if one, knowing that another has acted as his agent, does not disa- 
vow the authority as soon as he conveniently can, but lies by and 
permits a person to go on and deal with the supposed agent, or to lose 
an opportunity of indemnifying himself, this is an adoption and con- 
firmation of the acts of the agent. Nor can a supposed principal 
adopt a part for his own benefit, and repudiate the rest of the sup- 
posed agency ; he must adopt the whole, or none. 

If an agent makes a sale, and his principal ratifies the sale, he 
thereby ratifies the agent's representations made at the time of the 
sale and in relation to it, and is bound by them. 

The whole subject of mercantile agency is influenced and gov- 
erned by mercantile usage. Thus, as to the difference between factors 
and brokers, the law adopts a distinction usual among merchants, 
although it may not always be regarded by them. A factor is a 
mercantile agent for sales and purchases, who has possession of the 
goods ; a broker is such agent, but without possession of the goods. 
Hence, a factor may act for his principal, and yet in his own name, 
because the actual owner, by delivering to him the goods, gives to 
him the appearance of an owner ; but a broker must act only in the 
name of his principal. 

A purchaser of goods from a factor may set off against the price 
a debt due from the factor, unless he buys the goods knowing that 
they are another's; not so, if the purchaser buy from a broker. 
Again, a factor has a lien on the goods for his claims against his 
principal ; but a broker generally has not. 

One may be a factor as to all rights and duties, who is called 
a broker ; as an exchange-broker, who has notes for sale on discount, 
certificates of stock, &c, delivered into his possession ; and such 
broker, being actually a factor, would have a lien on the policies of 
insurance or other documents held by him for his commissions and 
charges about those documents. 

A cashier of a bank, or other official person, may be an agent for 
those whose officer he is, or for others who employ him. He has, 



M6 THE PROPERTY RIGHTS OF 



without special gift, all the authority necessary or usual in the trans- 
action of his business. But he cannot bind his employers by any 
unusual or illegal contract made with their customers. The same 
law, and the same qualifications, apply to the case of officers of rail- 
road companies, or other corporations. Their acts bind their em- 
ployers or companies, so far as they have authorized those acts, or 
have justified those who dealt with the officers in believing that the 
officers possessed such authority ; but no further. 

Hor would the acts or permissions of such officer have any 
validity if they violate his official duties, and are certainly and ob- 
viously beyond his power, even if sanctioned by his directors ; as if 
the cashier of a bank permitted overdrawing, or the like. And all 
parties who deal with such agent in such a transaction would be 
unable to hold the principal ; for the law would consider them as 
knowing that the officer could have no right to do such things. 

Therefore, the general agent of a corporation, clothed with a 
certain power by the charter or the lawful acts of the corporation, 
may use that power for an authorized, or even a prohibited purpose, 
in his dealings with an innocent third party, and render the corpora- 
tion liable for his acts, if they be really within the power given him, 
or seem to be within it, by the fault or act of the corporation ; but 
not otherwise. Thus, a treasurer of a corporation has no power to 
release a claim which belongs to the corporation. 



SECTION m. 
EXTENT AND DURATION OF AUTHORITY. 

A general authority may continue to bind a principal after its 

actual revocation, if the agency were known, and the revocation be 
wholly unknown to the party dealing with the agent, without that 
party's fault. 

An authority to sell implies an authority to sell on credit, if that 
be usual, otherwise not ; and if an agent sells on credit without any 
authority, or by exceeding his authority, the principal may claim 
his goods from the purchaser, or hold the agent responsible for their 
price. Neither an auctioneer, nor a broker employed to sell, has 
any right to sell on credit, unless this authority is given him ex- 
pressly, or by some known and established usage. And the agent is 
generally responsible if he mixes the goods of his principal with his 
own, in such a manner as to confuse them together, or takes a note 
payable to himself, unless this be authorized by the usage of the 
trade. 



A CITIZEN OF TEE UNITED STATES. 517 

If the agent (or factor) takes a note payable to himself, and 
becomes bankrupt, such note belongs to his principal, and not to the 
agent's assignees. 

A power to sell gives a power to warrant, where there is a dis- 
tinct usage of making such sales with warranty, and the want of 
authority to warrant is unknown to the purchaser, without his fault, 
and not otherwise. Thus it has been held that an authority to sell 
a horse implies an authority to sell with warranty, because horses 
are usually sold with warranty. A general authority to sell goods 
carries with it an authority to sell by sample. General authority to 
transact business, or even to receive and discharge debts, does not 
enable an agent to accept or indorse bills or notes, so as to charge 
his principal. Even special authorities to indorse are construed 
strictly. But this authority may be implied from the previous usage 
of the agent, recognized and sanctioned by the principal. Where a 
confidential clerk was accustomed to draw bills for his employer, 
and this employer had authorized him in one instance to indorse, 
and on two other occasions had received money obtained by his 
indorsement of his employer's name, the court held that a jury 
might consider the clerk authorized generally to indorse for his 
employer. An agent to receive cash has no authority to take bills 
or notes, except bank-notes. 

If an agent sells, and makes a material representation which he 
believes to be true, and the principal knows it to be false and does 
not correct it, this is the fraud of the principal and avoids the sale. 

If an agency be justly implied from general employment, it may 
continue so far as to bind the principal after his withdrawal of the 
authority, if that withdrawal be not made known in such way as is 
usual or proper to all who deal with the agent as such. 

Revocation, generally, is always in the power and at the will 
of the principal. His death operates of itself a revocation. But the 
death of an agent does not revoke the authority of a sub-agent 
appointed by the agent under an authority given him by the prin- 
cipal. If the power be coupled with an interest, — as where one 
gives a person power to sell goods and apply the money for his own 
benefit, or the like, — or if it is given for a valuable consideration, 
and the continuance of the power is requisite to make the interest 
available, then it cannot be revoked at the pleasure of the principal. 
Marriage of a woman revokes a revocable authority given by her 
while single. 

If an agent to whom commercial paper is given for collection be 
negligent or mistaken about it, and so in fault towards his principal, 
the measure of his responsibility is the damage actually sustained 
by his principal. 



518 THE PROPERTY RIGHTS OF 

If a bank receive notes or bills for collection, although charg- 
ing no commission, the possible use of the money is consideration 
enough to make them liable as agents having compensation ; that is, 
liable for any want ojf due and legal diligence and care. But if the 
bank exercise proper skill and care in the choice of a collecting 
agent, or of a notary, or other person or officer, to do what may be 
necessary in relation to the paper committed to them, the bank is 
not liable for his want of care or skill. 

In general, an exigency, or even necessity, which would make 
an extension of the power of an agent very useful to his employer, 
will not give that extension. A master of a ship, however, may sell 
it, in case of strict necessity, or pledge it by bottomry, to raise 
money. But this is a peculiar effect of the law-merchant, arising 
only from necessity. 

SECTION IV. 
THE EXECUTION OF AUTHORITY. 

Generally, an authority must be conformed to with great strict- 
ness and accuracy, otherwise the principal will not be bound, al- 
though the agent may be bound personally. But the strictness 
formerly required is now abated considerably; and, whatever be 
the form or manner of the signature of a simple contract, it will be 
held to bind the principal, if that were the certain and obvious 
intent. In the case of sealed instruments, the ancient severity is 
more strictly maintained. 

That the authority must be conformed to with strict accuracy, in 
all matters of substance, is quite certain ; but the whole instrument 
will be considered, in order to ascertain the intention of the parties 
and the extent of authority. A power given to two cannot be exe- 
cuted by one ; but some exception to the rule as to joint power 
exists in the case of public agencies, and also in many commercial 
transactions. Thus, either of two factors, whether partners or not, 
may sell goods consigned to both. And where there are joint 
agents, whether partners or not, notice to one is notice to both. 

In commercial matters, usage, or the reason of the thing, may 
sometimes seem to add to an authority; so far, at least, as is 
requisite for the full discharge of the duty committed to the agent 
in the best and most complete manner. Thus it is held that an 
agent, to get a bill discounted, may indorse it in the name of his 
principal, unless he is expressly forbidden to indorse. So a broker, 
employed to procure insurance, may adjust a loss under the same ; 
but he cannot give up any advantages, rights, or securities of the 
assured, by compromise or otherwise, without special authority. 



A CITIZEN OF THE UNITED STATES. 519 



SECTION V. 
LIABILITY OF AN AGENT. 

Generally, an agent makes himself liable by bis express agree- 
ment, or by transcending his authority, or by a material departure 
from it, or by concealing his character as agent, or by such conduct 
as renders his principal irresponsible, or by his own bad faith. If 
he describes himself as agent for some unnamed principal, he is not 
liable, unless he is proved to be the real principal. If an agent 
execute an instrument, the language of which would hold him 
personally, he cannot exonerate himself by showing that, in fact, he 
signed it as agent, and that this was known to the other party ; 
because this would be to vary the terms of a written contract by 
evidence, which is not permitted, as we have before stated. 

A party with whom an agent deals as agent cannot hold him 
personally, on the ground that he transcended or departed from his 
authority, if that party knew at the time that the agent did so. If 
he exceeds his authority, he is liable on the whole contract, although 
a part of it is within his authority. One who, having no authority, 
aots as agent, is personally responsible. But if an agent transcends 
his authority through an ignorance of its limits, which is actual and 
honest, and is not imputable to his own neglect of the means of 
knowledge, he would not be held, unless an innocent party dealing 
with him as agent would suffer loss if he were not held. 



SECTION VI. 
RIGHTS OF ACTION GROWING OUT OF AGENCY. 

If an agent intrnsted with goods sell the same without author- 
ity, the principal may affirm the sale, and sue the buyer for the 
price, or he may disaffirm the sale, and recover the goods from the 
buyer. 

In case of a simple contract, that is, a contract not under seal, 
an undisclosed principal may show that the nominal party was actu- 
ally his agent, and thus make himself actually a party to the contract, 
and sue upon it ; but if the other party has previously in good faith 
settled with the supposed agent, or paid him any thing in cash or by 
charge, or in account, this other party must not lose by the coming 
forward of the principal. So, too, an undisclosed principal, when 
discovered, may be made liable on such contract; but would be 
protected, if his accounts or relations with his agent had been in the 



520 THE PROPERTY RIGHTS OF 

mean time changed in good faith, so as to make it detrimental to 
him to be held liable. If one sells to an agent, knowing him to be 
an agent, and knowing who is his principal, and elects to charge the 
goods to the agent alone, he cannot afterwards transfer the charge 
to the principal. 

Notice to an agent, before the transaction goes so far as to 
render the notice useless, is notice to the principal. And knowl- 
edge obtained by an agent in the course of the transaction itself 
is the same thing as knowledge of the principal. Notice to an 
officer or member of a corporation is notice to that corporation, 
if the officer or member, by appointment, or by usage, had authority 
to receive it for the corporation ; but notice to or knowledge of 
any member is not necessarily notice to or knowledge of a cor- 
poration. 



SECTION VII. 

HOW A PRINCIPAL IS AFFECTED BY THE ACTS OF HIS 

AGENT. 

If an agent makes a fraudulent representation, a principal 
would be liable for resulting injury, although personally ignorant 
and innocent of the wrong ; nor can he take any benefit therefrom. 
A principal cannot, of course, restrict his liability by calling himself 
an agent, although this is sometimes attempted. 

Payment to an agent of money due to the principal binds the 
principal only when it is made to the agent in the regular course of 
business. Payment to a sub-agent appointed by the agent, but 
whose appointment is not authorized by the principal, binds the 
agent, and renders him liable to the principal for any loss of the 
money in the sub-agent's hands. Where a legacy was left to a 
tradesman, and the executors paid it to a shopman who was in the 
habit of receiving daily payments, this was held not a sufficient pay- 
ment to discharge the executors. And, generally, a shopman author- 
ized to receive money at the counter, or any person authorized to 
receive money at any particular place or in any particular way, or 
for any particular purpose, is not thereby authorized to receive it 
in any other place or in any other way, or for any other purpose. 
Nor is the principal bound, if the agent be authorized to receive 
the money, but, instead of actually receiving it, discharge a debt 
due from himself to the payer, and then give a receipt as for 
money paid to his principal, unless it can be shown that he has 
special authority to receive payment in this way, or that such pay- 
ment is justified, by known usage. 



A CITIZEN OF THE UNITED STATES. 521 

In general, although a principal may be responsible for the 
deliberate fraud of his agent in the execution of his employment, 
he is not responsible for his criminal acts, unless he expressly com- 
manded them. There is, however, a class of cases in which the 
principal has intrusted property to his agent, and the agent has 
used it illegally; and this act of the agent is evidence, which, if 
unexplained and unanswered, suffices to render the principal liable 
criminally, without proof of his direct participation in the act itself. 
The smuggling of goods, the issue of libellous publications, and the 
sale of intoxicating liquors by agents, belong to this class. 



SECTION VIII. 
MUTUAL RIGHTS AND DUTIES OF PRINCIPAL AND AGENT. 

An agent cannot depart from his instructions without making 
himself liable to his principal for the consequences. In determining 
the purport or extent of his instructions, custom and usage in like 
cases will often have great influence ; because, on the one hand, the 
agent is entitled to all the advantages which a known and estab- 
lished usage would give him, and, on the other, the principal has a 
right to expect that his agent will conduct himself according to such 
usage. But usage is never permitted to prevail over express in- 
structions. A principal who accepts the benefit of an act done by 
his agent beyond or aside from his instructions, discharges the agent 
from responsibility therefor. And any unnecessary delay in renounc- 
ing the transaction, or any endeavor to wait and make a profit out 
of it, is an acceptance of the act. But if the agent has bought 
goods for his principal without authority, the latter may renounce 
the purchase, and, nevertheless, hold the goods as security for his 
money, if that has been advanced on them. 

In general, every agent is entitled to indemnity from his prin- 
cipal, when acting in obedience to his lawful orders, or when he, in 
conformity with his instructions, does an act which is not wrong in 
itself, and which he is induced by his principal to suppose right at 
that time. 

An attorney or agent cannot appoint a sub-attorney or agent, 
unless authorized to do so expressly, or by a certain usage, or by 
the obvious reason and necessity of the case. Thus, a consignee 
or factor for the sale of merchandise may employ a broker to sell, 
when this is the usual course of business. A sub-agent, appointed 
without such authority, is only the agent of the agent, and not the 
agent of the principal, unless his appointment is in some way 
authorized or confirmed and ratified by the principal. 



522 THE PROPERTY RIGHTS OF 

An agent is bound to use, in the affairs of his principal, all that 
care and skill which a reasonable man would use in his own. And 
he is also bound to the utmost good faith. Where, however, an 
agent acts gratuitously, without an agreement for compensation, or 
any legal right to compensation growing out of his services, he will 
not be held responsible for other than gross negligence. But a 
strictly gratuitous agent will be held responsible for property in- 
trusted to him, if it be lost or injured by his gross negligence. 

For any breach of duty an agent is responsible for the whole 
injury thereby sustained by his principal; and, generally, a verdict 
against the principal for misconduct of the agent measures the claim 
of the principal over against the agent. The loss must be capable 
of being made certain and definite ; and then the agent is respon- 
sible if it could not have happened but for his misconduct, although 
not immediately caused by it. Thus, where an insurance-broker 
was directed to effect insurance on goods " from Gibraltar to 
Dublin," and caused the policy to be made "beginning from the 
lading of the goods on board," and they were laden on board at 
Malaga, and went thence to Gibraltar, and sailed for Dublin, and 
were lost on the voyage, so that the policy did not cover them 
because they were not laden at Gibraltar, — this was held to be gross 
negligence on his part, and he was held responsible for the value 
of the goods. 

If any agent embezzles his employer's property, it is quite clear 
that the employer may reclaim it whenever and wherever he can 
distinctly trace and identify it. But if it be blended indistin- 
guishably with the agent's own goods, and the agent die or become 
insolvent, the principal can claim only as a common creditor, as 
against other creditors ; but as against the factor or agent him- 
self, the whole belongs in law to the principal ; because the factor 
or agent had no right thus to mix up the property of another 
with his own, and if he chooses to do so, he must lose all of his 
own property that cannot be separated from that which is not his 
own. 

An agent employed to sell property cannot buy it himself ; nor. 
if employed to buy, can he buy of himself, unless expressly author- 
ized to do so. Nor can a trustee purchase the property he holds in 
trust for another. But the other party may ratify and confirm such 
sale or purchase by his agent ; and he will do this by accepting the 
proceeds and delaying any objection for a long time after the wrong- 
ful act is made known to him. And if a trustee or agent to sell 
property buys it, not in his own name, but through somebody else, 
the sale is voidable. 



A CITIZEN OF THE UNITED STATES. 523 

Among the obvious duties of all agents is that of keeping an exact 
account of their doings, and particularly of all pecuniary transac- 
tions. After a reasonable time has elapsed, the court will presume 
that such an account was rendered, accepted, and settled ; other- 
wise, every agent might always remain liable to be called upon for 
such account. Moreover, he is liable not only for the balances in 
his hands, but for interest ; or even, where there has been a long 
delay to his own profit, he might be liable for compound interest, on 
the same ground on which it has been charged in similar cases 
against executors, trustees, and guardians. No interest whatever 
would be charged, if such were the intention of the parties, or the 
effect of the bargain between them ; and this intention may be in- 
ferred either from direct or circumstantial evidence, — as the nature 
of the transaction, or the fact that the principal knew that the 
money lay useless in the agent's hands, and made no objection or 
claim. 

The general rule is, that a principal may revoke his agency, and 
an agent may throw up the agency at pleasure. But neither would 
be permitted to exercise this power in an unfair and injurious man- 
ner which circumstances do not require or justify, without being 
responsible to the other party for any damages caused by his wrong- 
ful act. 

Insanity revokes authority, especially if legally ascertained. 
But if the principal, when sane, gave an authority to his agent, 
and a third party acts with the agent in the belief of his author- 
ity, but after the insanity of the principal has revoked it, the insanity 
not being known to this third party, this revocation will not be per- 
mitted to take effect to the injury of this third party. 



SECTION IX. 
FACTORS AND BROKERS. 

All agents who sell goods for their principals, and guarantee the 
price, are said in Europe to act under a del credere commission. In 
this country, this phrase is seldom used, nor is such guaranty 
usually given, except by commission-merchants. Indeed, the word 
"factor" is not commonly used in this country, except among 
lawyers, the common term being "commission-merchants;" and 
they may or may not give a guaranty. Where a guaranty is 
given, the factor is so far a surety, that his employers must first 
have recourse to the principal debtor. Still his promise is not 
" a promise to pay the debt of another," within the statute of 
frauds." (See Section 2 of Chapter XV.) Nor does he guarantee 



524 THE PROPERTY RIGHTS OF 

the safe arrival of the money received by him in payment of the 
goods, and transmitted to his employer, but he must use proper 
caution in sending it. And if it is agreed that he shall guaranty 
the remittance, and charge a commission for so doing, he is liable, 
although he does not charge the commission. If he takes a note 
from the purchaser, this note is his employer's ; and if he takes de- 
preciated or bad paper, he must make it good. 

A broker or factor is bound to the care and skill properly belong- 
ing to the business which he undertakes, and is responsible for the 
want of it. 

A factor intrusted with goods may pledge them for advances to 
his principal, or for advances to himself to the extent of his lien for 
charges and commissions. And his power to pledge them, which 
grows out of the law-merchant, has been much enlarged by statute 
in many of our States. 

The mere wishes or intimations of his employer, if sufficiently 
distinct, have the force of instructions. Thus, in New York, a prin- 
cipal wrote to his factor, stating that he thought there was a short 
supply of the goods he had consigned, and giving facts on which 
his opinion was founded, and concluded, " I have thought it best for 
you to take my pork out of the market for the present, as thirty 
days will make an important change in the value of the article." 
This was considered by the court to be a distinct instruction, bind- 
ing upon the factor ; and he was therefore held liable for the loss 
caused by selling the pork within the thirty days. 

All instructions the agent or factor must obey ; but may still, as 
we have already stated, depart from their letter, if in good faith, 
and for the certain benefit of his employer, in an unforeseen exi- 
gency. Having possession of the goods, he may insure them; but 
is not bound to do so, nor even to advise insurance, unless requested, 
or unless * a distinct usage makes this his duty. He has much dis- 
cretion as to the time, terms, and manner of a sale, but must use this 
discretion in good faith. For a sale which is precipitated by him 
without reason and injuriously is voidable by his principal, as 
unauthorized. If he send goods to his principal without order, or 
contrary to his duty, the principal may return them, or, acting in 
good faith and for the benefit of the factor, may sell them as the 
factor's goods. 

Although a factor charges no guaranty commission, he is liable 
to his principal for his own default; so he is if he sells on credit, 
and, when it expires, takes a note to himself: but if he takes at the 
time of the sale a negotiable note from a party in fair credit, and the 
note is afterward dishonored.; this is the loss ">f his q uployer, unless 
the factor has guaranteed it. 



A CITIZEN OF THE UNITED STATES. 525 

If he sells the goods of many owners to one purchaser, taking a 
•note for the whole to himself, and gets it discounted for his own use 
or accommodation, he is then liable without any guaranty for the 
payment of that note. So he is if he gets discounted for his own 
use a note taken wholly for his principal's goods. But he may dis- 
count the note to reimburse himself for advances, without making 
himself liable. If he sends his own note for the price to his em- 
ployer, he must pay it. 

As a factor has possession of the goods, he may use his own name 
in all his transactions, even in suits at law ; but a broker can buy, 
sell, receipt, &c., only in the name of his employer. So, a factor 
has a lien on the goods in his hands for his advances, his expenses, 
and his commissions, and for the balance of his general account. 
And the factor may sell from time to time enough to cover his 
advances, unless there be something in his employment or in his 
instructions from which it may be inferred that he had agreed not 
to do so. But a broker, having no possession, has no lien. The 
broker may act for both parties, and often does so. But, from the 
nature of his employment, a factor should act only for the party 
employing him. 

A broker has no authority to receive payment for the goods he 
sells, unless that authority be given him, expressly or by usage. Nor 
will payment to a factor discharge a debtor who has received notice 
from the principal not to make such payment. 

Generally neither factor nor broker can claim their commissions 
until their whole service be performed, and in good faith, and with 
proper skill, care, and industry ; and their negligence may be given 
in evidence either to lessen their compensation or commissions, or 
to bar them altogether. But if the service begins, and is interrupted 
wholly without their fault, they may claim a proportionate compen- 
sation. If either bargains to give his whole time to his employer, 
he will not be permitted to derive any compensation for services 
rendered to other persons. Nor can either have any valid claim 
against any one for illegal services, or those which violate morality 
or public policy. 

A principal cannot revoke an authority given to a factor after 
advances made by the factor, without repaying or securing the 
factor. 

The distinction between a foreign and a domestic factor is quite 
important, as they have quite different rights, duties, and powers 
by the law-merchant generally. A domestic factor is one who is 
employed and acts in the same country with his principal. A 
foreign factor is one employed by a principal who lives in a dif- 
ferent country ; and a foreign factor is as to third parties — for 



526 THE PROPERTY RIGHTS OF 

most purposes and under most circumstances — a principal. Thus, 
third parties cannot sue the principal, because they are supposed to 
contract with the factor alone, and on his credit, although the 
principal may sue them; and a foreign factor is personally liable, 
although he fully disclose his agency, and his principal is known. 

The following forms of powers of attorney are those most fre- 
quently required ; and from them, by suitable alterations, powers of 
attorney may be framed for any purpose. 



FORMS ANNEXED TO THIS CHAPTER. 

(159.) A power of attorney. 

(160.) A power of substitution. 

(161.) A power of attorney in a shorter form. 

(162.) A full power of attorney to demand and recover debts. 

(163.) A power of attorney to sell and deliver chattels. 

(164.) A power of attorney given by seller to buyer. 

(165.) A power of attorney to sell shares of stock, with appointment 

by attorney of a substitute. 
(166.) A power of attorney to subscribe for stock. 
(167.) A proxy, or power of attorney to vote. 
(168.) A proxy, revoking all former proxies. 
(169.) A proxy, with affidavit of ownership, in use in New York. 
(170.) A power to receive a dividend. 



(159.) 

POWER OF ATTORNEY. 

Know all men by these presents, That I (the name of the principal 
or party appointing), of (residence), have constituted, ordained, and made, 
and in my stead and place put, and by these presents do constitute, ordain, 
and make, and in my stead and place put (name of attorney), to be my true, 
sufficient, and lawful attorney, for me and in my name and stead to (here 
set forth the purposes for which the power is given). 

Giving and hereby granting unto him, the said attorney, full power and 
authority in and about the premises; and to use all due means, course, and 
process in law for the full, effectual, and complete execution of the busi- 
ness afore described; and in my name to make and execute due acquittance 
and discharge ; and for the premises to appear, and the person of me the 
constituent to represent, before any governor, judges, justices, officers, and 
ministers of the law whatsoever, in any court or courts of judicature, and 
there on my behalf to answer, defend, and reply unto all actions, causes, 
matters, and things whatsoever relating to the premises. Also to submit 
any matter in dispute, respecting the premises, to arbitration or other- 
wise; with full power to make and substitute, for the purposes aforesaid, 



A CITIZEN OF THE UNITED STATES. 527 

one or more attorneys, under him, my said attorney, and the same again 
at pleasure to revoke. And generally to say, do, act, transact, determine, 
accomplish, and finish all matters and things whatsoever relating to the 
premises, as fully, amply and effectually, to all intents and purposes, as I, 
the said constituent, if present, ought or might personally, 
although the matter should require more special authority than is herein 
comprised, I, the said constituent, ratifying, allowing, and 

holding firm and valid all whatsoever my said attorney or his substitutes 
shall lawfully do, or cause to be done, in and about the premises, by virtue 
of these presents. 

In witness whereof, I have hereunto set my hand and seal, this 
day of in the year of our Lord eighteen hun- 

dred and sixty- 

(Signaiure.) (Seal.) 

Signed, sealed, and delivered in presence of us, 

Sometimes a power of attorney is given without any power of 
substitution. This may be by inadvertence, or because it was not 
intended that the attorney should substitute anybody in his place. 
Afterwards, it is desired to give him this power to substitute others. 
And this may be done by a separate instrument, as follows : — 



(160.) 

POWER OF SUBSTITUTION. 

Know all men by these presents, That I, by virtue of 

the power and authority to me given, in and by the letter of attorney of 
(the principal), which is hereunto annexed (or described without being 
annexed), do make, substitute, and appoint (name of substitute), as well for 
me as the true and lawful attorney and substitute of the said constituent 
named in the said letter of attorney, to do, execute, and perform all and 
every thing requisite and necessary to be done, as fully, to all intents and 
purposes, as the said constituent or I myself could do if personally pres- 
ent; hereby ratifying and confirming all that the said attorney and substi- 
tute hereby made shall do in the premises by virtue hereof and of the said 
letter of attorney. 

In witness whereof, I have hereunto set my hand and seal, the 
day of in the year of our Lord one thousand 

eight hundred and 

(Signature.) (Seal.) 

Executed and delivered in the presence of 



(161.) 

POWER OF ATTORNEY IN A SHORTER FORM. 

Know all men by these presents, That I (name of principal) , have 
made, constituted, and appointed, and by these presents do make, consti- 



528 THE PROPERTY RIGHTS OF 



tute, and appoint (name of attorney), my true and lawful attorney, for me 
and in my name, place, and stead to (here describe the thing to be done), 
giving and granting unto my said attorney full power and authority to do 
and perform all and every act and thing whatsoever requisite and necessary 
to be done in and about the premises, as fully, to all intents and purposes, 
as I might or could do if personally present, with full power of substitu- 
tion and revocation; hereby ratifying and confirming all that my said 
attorney or his substitute shall lawfully do or cause to be done by virtue 
hereof. 

In witness whereof, I have hereunto set my hand and seal, the 
day of in the year one thousand eight hun- 

dred and 

(Signature.) (Seal.) 
Executed and delivered in the presence of 



(162.) 
FULL POWER OF ATTORNEY TO DEMAND AND RECOVER DEBTS. 

Know all men by these presents, That J (name of principal), have 
constituted, ordained, and made, and in my stead and place put, and by 
these presents do constitute, ordain, and make, and in my stead and place 
put (name of attorney), to be my true, sufficient, and lawful attorney, for 
me and in my name and stead, and to my use, to ask, demand, levy, 
require, recover, and receive, of and from all and every person or persons 
whomsoever the same shall or may concern, all and singular sum and sums 
of money, debts, goods, wares, merchandise, effects, and things, whatso- 
ever and wheresoever they shall and may be found due, owing, payable, 
belonging, and coming unto me the constituent, by any ways and means 
whatsoever. 

Giving and hereby granting unto my said attorney full and whole 
strength, power, and authority in and about the premises; and to take and 
use all due means, course, and process in the law for the obtaining and 
recovering the same, and of recoveries and receipts thereof; and in my 
name to make, seal, and execute due acquittance and discharge; and for 
the premises to appear, and the person of me the constituent to represent, 
before any governor, judges, justices, officers, and ministers of the law 
whatsoever, in any court or courts of judicature, and there on my behalf 
to answer, defend, and reply unto all actions, causes, matters, and things 
whatsoever relating to the premises. Also to submit any matter in dis- 
pute to arbitration or otherwise, with full power to make and substitute 
one or more attorneys and my said attorney, and the same again at pleas- 
ure to revoke. And generally to say, do, act, transact, determine, accom- 
plish, and finish all matters and things whatsoever relating to the premises, 
as fully, amply, and effectually, to all intents and purposes, as I the said 
constituent, if present, ought or might personally, although the matter 
should require more special authority than is herein comprised, I the said 
constituent ratifying, allowing, and holding firm and valid, all and whatso- 
ever my said attorney or his substitutes shall lawfully do, or cause to be 
done, in and about the premises, by virtue of these presents. 



A CITIZEN OF THE UNITED STATES. 529 

In witness whereof, I have hereunto set my hand and seal, this 
day of in the year of our Lord one thousand eight 

hundred and 

(Signature.) (Seal,) 
Signed, sealed, and delivered in presence of us, 

(163.) 
POWER OF ATTORNEY TO SELL AND DELIVER CHATTELS. 

Know all men by these presents, That T, the undersigned, for value 
received, do hereby irrevocably constitute and appoint to be 

my true and lawful attorney, for me and in my name and behalf to sell, 
transfer, and deliver unto or any other person or persons (here 

describe the things to be sold). And further, one or more persons under him 
to substitute with like power. 

In witness whereof, I have hereunto set my hand and seal, this 
day of 18 

( Witnesses.) (Signature.) (Seal.) 



(164.) 

POWER OF ATTORNEY GIVEN BY SELLER TO BUYER. 

Know all men by these presents, That I for value 

received, have bargained, sold, assigned, and transferred, and by these 
presents do bargain, sell, assign, and transfer, unto (name of the buyer), 
the following articles, namely (describe the articles) ; and I do hereby con- 
stitute and appoint the said (the buyer) my true and lawful attorney 
irrevocable, for me and in my name and stead, but to my use, to sell, 
assign, transfer, and set over all or any part of the said (the goods), and 
for that purpose to make and execute all necessary acts of assignment and 
transfer, and one or more persons to substitute with like full power, 
hereby ratifying and confirming all that my said attorney or his substitute 
or substitutes shall lawfully do by virtue hereof. 

In witness whereof, I have hereunto set my hand and seal, the 
day of one thousand eight hundred and 

(Signature.) (Seal.) 
Signed, sealed, and delivered in presence of 



(165.) 

POWER OF ATTORNEY TO SELL SHARES OF STOCK, WITH APPOINT- 
MENT BY ATTORNEY OF SUBSTITUTE. 

Know all men by these presents, That, for value received, I (name 
of the principal) , of do hereby make, constitute, and appoint 

irrevocably, my true and lawful attorney (with power of sub- 

34 



{,30 THE PROPERTY RIGHTS OF 

stitution), for and in my name and on my behalf , to sell, assign, and 
transfer nnto (name of buyer), share now standing in my name 
in the capital or joint stock of the And my said attorney is 

hereby fully empowered to make and pass all necessary acts for the said 
assignment and transfer. 

Witness my hand and seal, 186 

(Signature.*) (Seal.) 

Signed, sealed, and delivered in the presence of 

For value received, I appoint, irrevocably (name of the substitute), as 
my substitute, with all the powers above given to me. 
Witness my hand and seal, 186 

(Signature.) (Seal.) 
Signed, sealed, and delivered in the presence of 



(166.) 

POWER OF ATTORNEY TO SUBSCRIBE FOR STOCK. 

Know all men by these presents, That I, the undersigned, do 

hereby irrevocably constitute and appoint to be my true and 

lawful attorney, for me and in my name and behalf to subscribe for 

shares in the capital stock of the And further, 

one or more persons under him to substitute with like power. 

In witness whereof, I have hereunto set my hand and seal, this 

day of 18 

(Witnesses present.) (Signature.) (Seal.) 

(167.) 

PROXY, OR POWER OF ATTORNEY TO VOTE. 

Know all men by these presents, That I (name of the principal), ol 

do hereby appoint to be my substitute and proxy 

for me and in my name and behalf to vote at any election of directors or 

other officers, and at any meeting of the stockholders of said company, as 

fully as I might or could were I personally present. 

In witness whereof, I have hereunto set my hand and seal, this 

day of 18 

(Witnesses present) (Signature.) (Seal.) 

(168.) 

PROXY, REVOKING ALL PREVIOUS PROXIES. 

Know all men by these presents, That I, the undersigned, stock- 
holder in the (name of the company) , do hereby appoint my 
true and lawful attorney, with power of substitution, for me and in my 
name to vote at the meeting of the stockholders in said company, to be 



A CITIZEN OF THE UNITED STATES. 531 

held at or at any adjournment thereof, with all the powers 

I should possess if personally present, hereby revoking all previous 
proxies. 

18 
{Witness.') (Signature.) 

(169.) 

PROXY, WITH AFFIDAVIT OF OWNERSHIP, IN USE IN NEW YORK. 

Know all men by these presents, That I, do hereby 

constitute and appoint my attorney and agent, for me and in 

my name, place, and stead to vote as my proxy at any election of directors 
of the according to the number of votes I should be entitled to 

vote if then personally present. 

In witness whereof, I have hereto set my hand and seal, this 
day of one thousand eight hundred and 

(Signature.) (Seal.) 
Signed, sealed, and delivered in presence of 

I do swear (or affirm) that the shares on which my attorney and agent 
in the above proxy is authorized to vote do not belong, and are not 
hypothecated, to the said company, and that they are not hypothecated or 
pledged to any other corporation or person whatever; that such shares 
have not been transferred to me for the purpose of enabling me to vote 
thereon at the ensuing election, and that I have not contracted to sell or 
transfer them upon any condition, agreement, or understanding in relation 
to my manner of voting at the said election. 

(Signature.) 

Sworn to this day of 18 , before me, 

(Signature.^ 

(170.) 

POWER TO RECEIVE DIVIDEND. 

Know all men by these presents, That I, of 

do authorize, constitute, and appoint to receive from the (name 

of the company) the dividend now due to me on all stock standing to my 
name on the books of the said company, and receipt for the same; hereby 
ratifying and confirming all that may lawfully be done in the premises by 
virtue hereof. 

Witness my hand and seal, this day of 18 

(Signature.) (Seal.) 

Signed, sealed, and delivered in the presence of 



032 THE PROPERTY RIGHTS OF 



CHAPTER XX. 
PAKTNEESHIP. 

SECTION I. 
WHAT A PARTNERSHIP IS. 

When two or more persons combine their property, labor, or 

skill, for the transaction of business for their common profit, they 
enter into partnership. Sometimes the word "firm" is used as 
synonymous with partnership ; sometimes, however, it means only 
the copartnership name. 

A single joint transaction, out of which, considered by itself, 
neither profit nor loss arises, will not create a partnership. If a 
joint purchase be made, and each party then takes his distinct and 
several share of the goods, this is no partnership. 

Any persons competent to transact business on their own account 
may enter into partnership for that purpose. 

SECTION II. 
HOW A PARTNERSHIP MAY BE FORMED. 

No especial form or manner is necessary. It may be by oral 

agreement, or by a written agreement, which may have a seal or 
not. But the liability and authority of the partners begin with the 
actual formation of the partnership, and do not wait for the execu- 
tion of any articles. In general, if there be an agreement to enter 
into business, or into some particular transaction, together, and 
share the profits and losses, this constitutes a partnership, which is 
just as extensive as the business proposed to be done, and not more 
so. The parties may agree to share the profits in what proportion 
they choose ; but in the absence of any agreement, the law pre- 
sumes equal shares. 

They may agree as to any way of dividing the losses, or even 
that one or more partners alone shall sustain them all, without loss 
to the rest. And this agreement is valid as between themselves ; 
but it will not protect those partners who were to sustain no loss 
from responsibility to third parties, unless the third parties knew of 
this agreement between the partners, and gave credit accordingly. 



A CITIZEN OF THE UNITED STATES. 533 

If A, B, & C, being partners, agree that A' should not lose any 
thing by their business, and a person knowing this bargain dealt 
with the firm on the credit of B & C, he could not call on A. But 
an agreement exempting partners from loss generally, or from loss 
beyond the amount invested, will only operate between the part- 
ners, unless it can be shown that the third party not only knew the 
agreement, but contracted with the firm on the basis of this agree- 
ment. And, generally, stipulations in articles of copartnership limit- 
ing the power of a partner are not binding on third parties who are 
ignorant of them. Each partner is absolutely responsible to every 
creditor of the copartnership for the whole amount of the debt. 
And, if thereby obliged to suffer loss, his only remedy is against 
the other partners. 

Although partners may agree and provide as they will in their 
articles, a long neglect of these provisions will be regarded as a 
mutual waiver of them. 

Persons may be liable as partners to third parties or strangers, 
who are not partners as between themselves. Whether they are 
partners as to each other would generally be determined by the 
intention of the parties, as drawn from their contract, — whether 
oral or written, — under the ordinary rules of evidence and con- 
struction. But whether one is liable as a partner to a person who 
deals with the firm must depend in part upon his intention, but 
more upon his acts ; for if by them he justifies those who deal 
with the firm in thinking him a partner in that business, he must 
bear the responsibility ; as if he declare that he has a joint in- 
terest in the property, or conducts the business of the firm as a 
partner, accepting bills, or suffers his name to be used upon cards, 
or in advertisements, or on signs, or in any similar manner. The 
declarations or acts of one person cannot, however, make another 
person liable as partner, without co-operation or consent, by word 
or act, on his part. The rule is this : that one who thus holds him- 
self out as a partner, when he really is not one, is responsible to {• 
creditor who on these grounds believed him to be a partner ; but 
not to one who knew nothing of the facts, or who, knowing 
them, knew also that this person was not a partner. 

A secret partner is one who is actually a partner by partici- 
pation of profit, but is not avowed or known to be such ; and a 
dormant partner is one who takes no share in the conduct or con- 
trol of the business of the firm. Both of these are liable to creditors 
(even if the creditors did not know them to be members of the firm), 
on the ground of their interest and participation in the profits, which 
constitute, with the property of the firm, the funds to which cred- 
itors may look for payment. A nominal partner is one who hold* 



534 'IttV PROPERTY RIGHTS OF 

himself out to the world as such, but is not so in fact. He is liable 
to creditors of the firm, on the ground that he justifies them in 
trusting the firm on his credit, and, indeed, invites them to do so, 
by declaring himself to be a partner. 

The principal test of membership in a mercantile firm is said 
to be the participation in the profits. Thus, if one lend money to 
be used in a business, for which he is to receive a share in the 
profits, this would make him a partner; and if he is to receive 
lawful interest, and, in addition thereto, a share of the profits, 
this would generally make him liable as a partner to a creditor 
of the firm. 

Sometimes a clerk or salesman, or a person otherwise employed 
for the firm, receives a share of the profits instead of wages. 
Formerly it was held, that if such person received any certain 
share, say " one-tenth part of the net annual profits," this made 
him liable as a partner; but if he received "a salary equal in 
amount to one-tenth of the net profits," this did not make him 
a partner. Now, the courts look more at the actual intention 
of the parties, and their actual ownership of an interest in the 
funds of the partnership, and are not governed by the mere phrase- 
ology used. If, in fact, he works for wages, although these wages 
are measured by the profits, he is no partner, and therefore not 
liable for the debts, as every partner is. 

Hence, factors and brokers for a commission on the profits, 
masters of vessels who engage for a share of the profits, or sea 
men employed on shares in whale-ships, are none of them partners. 

A partnership usually has but one business name ; but there 
does not seem to be any legal objection to the use of two names, 
especially for distinct business transactions ; asAB& Co. for gen- 
eral business, and the name of A C & Co. for the purpose of making 
or indorsing negotiable paper, or for carrying on some particular 
business. 



SECTION III. 
HOW A PARTNERSHIP MAY BE DISSOLVED. 

If the articles between the partners do not contain an agree- 
ment that the partnership shall continue for a specified time, it may 
be dissolved at the pleasure of either partner. But no partner can 
exercise this power wantonly and injuriously to the other partners, 
without making himself responsible for the damage he thus causes. 
If there be a provision that the partnership shall continue a cer- 
tain time, this is binding. 



A CITIZEN OF THE UNITED STATES. 535 

If either partner were to undertake to assign his interest, for 
the purpose of withdrawing from the firm, against the will of the 
partners, without good reason, and in fraud of his express agree- 
ment, a court of equity would interfere and prevent him. For the 
assignment of a partner's interest, or of his share of the profits, 
operates at once a dissolution of the partnership. 

Such assignment may transfer to the assignee the whole in- 
terest of the assignor, but cannot give him a right to become a 
member of the firm. There seems to be an exception to this rule 
where the partnership is very numerous, and the manner of holding 
shares, by scrip or otherwise, indicates the original intention of 
making the shares transferable. Such a partnership is in effect a 
joint-stock company ; which form of association is not very common 
here, because incorporation is better, and is easily obtained. 

Death of a general or even of a special partner, operates a 
dissolution ; and the personal representatives of the deceased do 
not take his place, unless there be in the articles an express pro- 
vision that they shall. And such provisions are construed as giving 
the heirs or personal representatives the right of electing whether 
to become partners or not. If either party is unable to do his duty 
to the partnership, as by reason of insanity or a long imprison- 
ment, or if he be guilty of material wrong-doing to the firm, — a 
court of equity will decree a dissolution. And if the original 
agreement were tainted with fraud, the court will declare it void 
from its beginning. 

"Whenever a court of equity decrees a dissolution of the part- 
nership, it will also decree that an account be taken between the 
partners, if requested by either partner. And if necessary to do 
justice, it will decree a sale of the effects and a distribution of the 
proceeds, after a consideration of all the facts of the case and the 
whole condition of the firm. Such a decree may be made if- a part- 
ner die or become bankrupt. 

If the whole interest of a copartner is levied upon and sold 
on execution, this makes a dissolution, and the purchaser becomes, 
— like every other assignee of a partner, — not a partner, but only 
a tenant in common (that is, a joint owner) with the other part- 
ners ; but if the levy and sale are only of a part, which may be 
severed from the rest, this may not operate a dissolution except 
as to that part. 

( If one partner retires, this operates in law a dissolution, and 
the remaining partners constitute in law a new firm, although in 
fact the remaining partners frequently continue and go on with 
their business, under the name of the old firm, with or without new 
members, as if it were the same firm. 



b3b* THE PROPERTY RIGHTS OF 

The partner retiring should withdraw his name from the firm, 

and give notice, by the usual public advertisement, of his retirement, 
and also, by personal notice, by letter or otherwise, to all who 
usually do business with the firm; and after such notice he is 
not responsible, even if his name be retained in the firm by the 
other partners, if this is done without his consent. Nor is he re- 
sponsible to any one who has in any way actual knowledge of his 
retirement. 

A secret or unknown partner is not liable for a debt contracted 
after his retirement, although he give no notice ; because his liability 
does not rest upon his giving his credit to the firm, but upon his 
being actually a partner. 



SECTION IV. 
THE PROPERTY OF THE PARTNERSHIP 

A partnership may hold real estate as well as personal estate, 
and a partnership may be formed to trade in land, or to cultivate 
land. But the rules of law in respect to real estate, as in relation 
to title, conveyance, dower, inheritance, and the like, make some 
difference. As far, however, as is compatible with these rules, it 
seems to be agreed that the real estate of the partnership is treated 
as if it were personal property, if it have been purchased with the 
partnership funds and for partnership purposes. 

There is some difficulty in explaining this matter to those who 
are not acquainted with the peculiar law of real estate. Thus, no 
sale of land is valid except by deed : and only he who is thus a 
grantee under seal has a legal title. But a court of equity acknowl- 
edges and protects an equitable title in those who really possess all 
the interest in the land ; as partners do who have paid for it, though 
it stands in the name of one partner only. But a court of equity 
cannot disregard the laws of conveyance and record, and therefore 
says that this one partner is the only legal owner, but that he owns 
the land as trustee for the firm. And then they compel him to sell 
it, or otherwise dispose of it, as the interests of the firm or of their 
creditors require. 

So land thus purchased does not go to the heirs of the partner 
or partners in whose name it may stand, but is first subject to thej 
debts of the firm, and then to the balance which may be due to 
either partner on winding up their affairs. But when these debts 
and claims are adjusted, any surplus of the real estate will then 
descend as real estate, and not as personal estate. 



A CITIZEN OF THE UNITED STATES. 537 

Improvements made with partnership funds on the real estate 
of a partner will be regarded as partnership property. 

The widow has her dower only after the above-mentioned debts 
and claims are adjusted. And while the legal title is protected, as 
it must be for the purpose of conveyance and other similar pur- 
poses, the person holding this legal title will be held as a trustee 
for the partnership if the partnership be entitled to the beneficiary 
interest. 

But a purchaser of partnership real property, without notice or 
knowledge from a partner holding the same by a legal title, is pro- 
tected against the other partners. If, however, the purchaser has 
such knowledge, the conveyance may be avoided as fraudulent, or 
he may be held as trustee, the land being in his hands chargeable 
with the debts and claims of the partnership. 



SECTION V. 

THE AUTHORITY OF EACH PARTNER, AND THE JOINT 
LIABILITY OF THE PARTNERSHIP. 

This authority is very great, because the law-merchant makes 
each partner an agent of the whole partnership, with full power to 
bind all its members and all its property, in transactions which fall 
within the usual business of the firm ; as loans, borrowing, sales, 
even of the whole stock, pledges, mortgages, or assignments; and 
this last extends even to an honest and prudent assignment of the 
whole stock and personal property to trustees to pay partnership 
debts. It extends to the making or indorsing negotiable paper ; 
and to transactions out of the usual business of the firm, if they 
arose from and were fairly connected with that business. 

Nor is any party dealing with a partner affected by his want 
of good faith towards the partnership, unless he colluded with the 
partner, and participated in his want of good faith, by fraud or gross 
negligence. But a holder of a note or bill signed or indorsed by a 
partner without authority has no claim against the partnership, if 
he knew or should have known the want of authority. 

A partner cannot, in general, bind the firm by a guaranty, a 
letter of credit, or a submission to arbitration, without authority, 
because these things do not belong generally and properly to com- 
mercial business. But any thing so done by a partner may be 
adopted and ratified by the partnership, and then it has the same 
force as if originally authorized. And this ratification may be 
formal and express, or consist only of acts which distinctly imply 
it ; such as assenting to and acting with reference to it, and espe- 



538 THE PROPERTY RIGHTS OF 

cially receiving and holding the beneficial results of it; as, foi 
example, taking and holding money received from it. 

By the earlier and more stringent rules of law, a partner could 
not bind his copartners by an instrument under seal, unless he was 
himself authorized under seal; and their subsequent acknowledg- 
ment of his authority did not cure the defect. Now, however, a 
partner may bind his firm by an instrument under seal, if it be in 
the name and for the use of the firm, and in the transaction of their 
usual business, provided the other copartners assent thereto before 
execution, or adopt and ratify the same afterwards ; and they may 
assent or ratify by word as well as by seal ; or provided he could 
have made the same conveyance, or done the same act effectually, 
without a deed. And a deed executed by one partner in the pres- 
ence and with the assent of the other partners will bind them. 

A partnership has no seal at law, and can have none : only a 
person or a corporation can have a seal. Instruments are some- 
times executed, "AB& Co.," and a seal is affixed to the name. 
This is, strictly speaking, no seal at all ; and if the instrument needs 
a seal to make it valid, as if it were a deed of land, it would, at law, 
be wholly void. But the courts in some of our States are somewhat 
lax on this subject, and might construe it as the seal of each one of 
the partners to give the instrument validity. 

A majority of the members cannot conclusively hind the minor- 
ity, unless in reference to the internal concerns of the firm; as, for 
example, the salary or appointment of a clerk, the hiring or fitting- 
up of a counting-room, the manner of keeping accounts, and the 
like. But one member may, so far as he is concerned, arrest a 
negotiation which was only begun, and prevent a bargain which 
would be binding on him, by giving notice to the third party of his 
dissent and refusal in season to enable him to decline the bargain 
without detriment. 

Partners must act as such, to bind each other. Thus, if a part- 
ner makes a note, and signs it with his own name and his partner's 
name, as a joint and several note, it does not bind his partner, for the 
partnership gave him no authority to make such a note. 

If the name of one partner he also the name of the firm, — for 
John Smith and Henry Robinson may do business as partners under 
the name of "John Smith," — this name is not necessarily the name 
of the firm when used in a note or contract ; and if the partner 
whose name is used carries on mercantile business for himself, it 
will not be supposed to be used as the name of the firm, without 
sufficient proof. 

One who is not a partner will not have either the authority 
or the obligation of a partner cast upon him by an agreement of the 



A CITIZEN OF THE UNITED STATES. 539 

firm to be governed by his advice. Nor shall one be charged as 
partner with others, unless he has incurred the liability by his own 
voluntary act. 

The reception of a new member constitutes, in law, a new firm ; 
but the new firm may recognize the old debts, as by express agree- 
ment, or paying interest, or other evidence of adoption, and then 
the new firm is jointly liable for the old debt. But there must be 
some fact from which the assent of the new member to this adop- 
tion of the old debt may be inferred, for his liability is not to be 
presumed. 

A notice in legal proceedings, abandonment to insurers by one 
who was insured for himself and others, a notice to quit of one of 
joint lessors or lessees who are partners in trade, notice to one part- 
ner of the dishonor of a note or bill bearing the name of the firm, 
a release to one partner or by one partner, — w T ill bind all the part- 
ners, and render them jointly liable. But a service of legal process 
should be made upon each partner personally. 

If money be lent to a partner for partnership purposes, it creates 
a partnership debt ; but not if lent expressly on the individual 
credit of the person borrowing ; and not if the borrowing partner 
receives it to enable him to pay his contribution to the capital of 
the firm. Though the money be not used for the firm, if it was 
borrowed by one partner on the credit of the firm, in a manner and 
under circumstances justifying the lender in trusting to that credit, 
it creates a partnership debt. And if a partner uses funds in his 
hands as trustee, for partnership purposes, the firm are certainly 
jointly bound, if it was done with their knowledge. And if it was 
done without their knowledge, and the partners are distinctly and 
directly benefited by the transaction, and retain the benefit, they 
will be liable as if they had authorized it. 

If in any case a person, knowing the existence of the firm, gave 
credit to a single partner only, then he can look only to that part- 
ner, and not to the firm, although the money was applied to and 
used for partnership purposes. But if the partner held himself out 
as borrowing for the firm, and the lender without any want of due 
care gave credit to the firm, and the transaction was a fair busi- 
ness transaction on the part of the lender, the firm will be liable, 
although the money is fraudulently appropriated by the partner to 
his own use. 

In the absence of evidence showing to whom the credit was 
given, the fact that money lent to one partner was applied to the 
use of the firm, will make the firm liable for the payment ; but not 
if the partner employed it as his contribution to increase the capital 
of the firm. 



540 THE PROPERTY RIGHTS OF 

If the purchaser of goods or the borrower of money have a dor- 
mant and secret partner, and the goods were bought or the money 
borrowed for partnership purposes, the seller or lender may look to 
both partners for payment, unless the seller or lender, knowing all 
the partners, gave credit to one only. 

The firm is liable only to one who deals with a partner in good 
faith. Thus, if one receives negotiable paper bearing the name of 
a firm, knowing that it is not in the business of the firm, and is 
given for no consideration received by the firm, he cannot hold the 
firm. And if a creditor of one partner receive for his separate 
debt a partnership security, this would be a fraud, unless the part- 
ner had, or was supposed by the creditor to have, the authority of 
the rest. 

If he supposed the partner had this authority, he cannot hold 
the partnership if the partner had not the authority, unless the part- 
nership had caused him to believe it. And if the partnership secu- 
rity be transferred for two considerations, one of which is private 
and fraudulent, and the other is joint and honest, the partnership 
is bound for so much of it as is not tainted with fraud, and only for 
that. 

The partnership may be liable for injury caused by the criminal 
or wrongful acts of a partner, if these were done in the transaction 
of partnership business, and if it was the partnership which gave to 
the wrong-doer the means and opportunity of doing the wrong. But 
an illegal contract will not bind the copartners, for the parties enter- 
ing into it must be presumed to know its illegality ; and the law 
enforces no bargain that is contrary to law. 

The acknowledgment of one who had been a partner, after the 
dissolution of the partnership, may take the debt out of the statute 
of limitations as to him, but not so as to restore the liability of all 
the partners without their assent. 



SECTION VI. 
REMEDIES OF PARTNERS AGAINST EACH OTHER. 

It is seldom that a partner can have a claim against another 
partner, as such, which can be examined and adjusted without an 
investigation into the accounts of the partnership, and, perhaps, a 
settlement of them. Courts of law have ordinarily no adequate 
means of doing this ; and therefore it is generally true that no part- 
ner can sue a copartner at law for any claim growing out of part- 
nership transactions and involving partnership interests. But the 
objection to a suit at law between partners goes no further than 



A CITIZEN OF THE UNITED STATES. 541 

the reason of it; and, therefore, one may sue his copartner upon his 
debt or agreement to do any act which is not so far a partnership 
matter as to involve the partnership accounts. 

If the accounts are finally adjusted, either partner may sue for 
a balance; and so it would be if the accounts generally remained 
open, but a specific part of them were severed from the rest, and a 
balance found on that. The rule is generally laid down, that an 
action cannot be sustained by a partner against a partner for a bal- 
ance, unless there is an express promise to pay it. But such prom- 
ise would be inferred in all cases in which an account had been 
taken, and a balance admitted to be due. 

In general, any action at law between partners can be main- 
tained only when a rendering of judgment in this action will com- 
pletely terminate all partnership matters, so that no further cause of 
action can grow out of them. 

What a court of law cannot do as to actions between partners 
a court of equity can ; and, generally, a court of equity has a full 
jurisdiction over all disputes and claims between partners, and 
may do whatever is necessary to settle them in conformity with 
justice. 

A partner may sue his copartner for money advanced before the 
partnership was formed, although the loan was made to promote 
the partnership. And for work done for the firm before he became 
a member of it, he may sue those who were members when he did 
the work. And he may sue a copartner on his note or bill, although 
the consideration was on partnership account ; but, in general, no 
action at law can be maintained by a partner against his partners for 
work and labor performed, or money expended for the partnership. 

A partner who pays more than his proportion of a debt of the 
partnership cannot demand specific contribution from his copartners, 
but must charge his payment to the firm. The reason is, that they 
may have claims against him on other accounts, and they must be 
all settled together to strike the balance. 

If one of a firm be a member also of another firm, the one firm 
cannot sue the other; for the same person cannot be plaintiff and 
defendant of record. A cannot sue A; and therefore A, B, & G 
cannot sue C, D, & A. In all these cases an adequate remedy 
may be found in a court of equity. 

If a firm have a negotiable note which it cannot sue, because 
one of its own firm is liable upon it and must be made defendant, 
it can indorse the note over, and the indorsee may sue it in his own 
name, as we have before stated. (See Section 6, Chapter XVIII.) 

The partners are entitled to perfect good faith from each copart- 
ner ; and a court of equity will interfere to enforce this. No part- 



542 THE PROPERTY RIGHTS OF 

ner will be permitted to treat privately, and for his own benefit 
alone, for a renewal of a lease, or to transfer to himself of any benefit 
or interest properly belonging to the firm. And so careful is a court 
of equity in this respect, that it will not permit a copartner, by his 
private contract or arrangement, to subject himself to a bias or 
interest which might be injurious to the firm, and conflict with his 
duty to them, but will declare void any contract of this kind. 



SECTION VII. 
RIGHTS OF THE FIRM AGAINST THIRD PARTIES. 

If a partner sells the goods of the firm in his own name, the firm 

may sue for the price. But the rights of one who deals in good 
faith with a copartner, as with him alone, are so far regarded, that 
he may set off any claim, or make use of any other defences against 
the suit of the firm, which he could have made had the person with 
whom he dealt sued alone. 

Therefore, if A honestly bought goods of a firm from a partner 
whom he supposed to be sole owner of them, and paid him the price, 
the firm cannot recover this price from the buyer, although the seller 
sold the goods fraudulently, and cheated the firm out of the money, 
but must charge the price to the selling partner. 

A guaranty to a copartner, if for the use and benefit of the firm, 
gives to them a right of action. 

A new firm, created by some change in the membership of an 
old firm, is entitled to the benefit of a guaranty given to the old firm, 
even if sealed, only when it shall distinctly appear that the instru- 
ment was intended to have that effect, and extend to the new firm. 



SECTION VIII. 
RIGHTS OF CREDITORS IN RESPECT TO FUNDS. 

The property of a partnership is bound to pay the partnership 

debts; and, therefore, a creditor of one copartner has no claim to the 
partnership funds until the partnership debts are paid. If there be 
then a surplus, he may have that copartner's interest therein, in pay- 
ment of his private debt. 

If a private creditor attaches partnership property, or in any 
way seeks to appropriate it to his private debt, the partnership debts 
being unpaid, he cannot hold it, either at law or in equity. Such 
attachment or appropriation is wholly subject to the paramount 
claims of the partnership creditors, and is wholly defeated by the 



A CITIZEN OF THE UNITED STATES. 543 

insolvency of the partnership, although the partnership creditors 
have not brought any actions for their debts. 

Hence, if a creditor of A attaches his interest in the property of 
A, B, & Co., and a creditor of A, B, & Co. attaches the same prop- 
erty, the first attachment is postponed to the second ; that is, it 
has no effect until the debt of the second creditor is fully satisfied, 
and then it is good for the surplus of property. If, however, one 
partner is dormant and unknown, the creditor of the other at- 
taching the stock is not postponed to the creditor who discovers 
the dormant partner and sues him with the other, unless the 
first attaching creditor's claim has no reference to the partner- 
ship business, and that of the second attaching creditor has such 
reference. 

The partnership creditors are restrained from appropriating 
the private property of the copartners until the claims of their 
private creditors are satisfied in courts of equity. And some re- 
cent adjudications indicate that the rule will become established 
at law. 

I think the law ought to be, and that it is now tending to 
become, this. A partnership is a kind of body by itself, somewhat 
like a corporation. It has its own funds and its own debts. The 
individual members may also have each his own funds and his own 
debts. The funds of the partnership should first be applied to the debts 
of the partnership ; and, if there be any surplus, the members have 
it, and their creditors get it. So the private funds of each member 
should first be applied exclusively to the payment of that person's 
private debts; and when they are wholly paid, the surplus should 
go to the partnership creditors, because each partner is responsible 
for the partnership debts. This rule prevails on the continent of 
Europe very generally. 

It is now quite certain that the levy of a private creditor of one 
copartner upon partnership property can give him only what that 
copartner has ; that is, not a separate personal possession of any 
part or share of the stock or property, but an undivided right 
or interest in the whole, subject to the payment of debts and the 
settlement of accounts, including also the right to demand an 
account. 

As to how such levy and sale of the interest of one copartner 
shall be made by the sheriff, there is much diversity both of practice 
and of authority. Upon principle, we think the sheriff can neither 
seize nor transfer by sale either the whole stock or any specific 
portion of it. He should, we think, without any actual seizure, sell 
all the interest of the defendant partner in the stock and property 
of the partnership ; much in the same way in which he would sell 



544 THE PROPERTY RIGHTS OF 

his right to redeem a mortgage, or any other incorporeal right, sub- 
ject to attachment. The purchaser would then have a right to 
demand an account and settlement, and a transfer to himself of any 
balance or property to which the copartner whom he sued would 
have been entitled. 

Where the trustee process, or process of foreign attachment, is 
in use, the better way would be for the sheriff to return a general 
attachment of all the interest of the debtor in the partnership 
property, and summon the other partners as the trustees of the 
debtor. 

It must be stated, however, that the rules of law in regard to 
the liability of partnership property for the private debts of partners, 
and as to how any such liability may be enforced, are, at present, 
somewhat obscure and uncertain. 



SECTION IX. 
THE EFFECTS OF DISSOLUTION. 

If the dissolution is caused by the death of any partner, the 

whole property goes to the surviving partner or partners. They 
hold it, however, not as their own, but only for the purpose of settle- 
ment ; and therefore they have, in relation to it, all the power which 
is necessary for that purpose, and no more. If they carry on the 
business with the partnership funds, they do so at their own risk ; 
and the representatives of the deceased may require their share of 
the capital, and choose between calling on them, in addition, for 
interest, or for a share of the profits which the surviving partners 
have made. 

The survivors are not partners but tenants in common (joint 
owners) with the representatives of the deceased of the stock or prop- 
erty in possession ; and have all necessary rights to settle the affairs 
of the concern and pay its debts. After a dissolution, however 
caused, one who had been a partner has no authority to make new 
contracts in the name of the firm, and cannot make or indorse notes 
or bills with the name of the firm, even if he be expressly authorized 
to settle the affairs of the firm. There must be a distinct authority 
to sign for the others who were formerly partners. A parol author- 
ity will be sufficient, even if the general terms of the partnership 
had been reduced to writing. 

It is common where a partnership is dissolved by mutual con- 
sent, to provide that some one of the partners shall settle up the 
affairs of the concern, collect and pay debts, and the like. But this 
will not prevent any person from paying to any partner a debt due 



A CITIZEN OF THE UNITED STATES. 545 

to the firm ; and, if such payment be made in good faith, the release 
or discharge of the partner is effectual. 

If all the debts were assigned and transferred to any person, as 
his property, any debtor who had notice of this would be bound to 
make payment to this person alone ; and, if he paid anybody else, 
he would be obliged to pay the money over again. 

It is frequently provided that one partner shall take all the 
property and pay all the debts ; but this agreement, though valid 
between the partners, has no effect upon the rights of third parties 
against the other partners ; for they have a valid claim against all 
the partners, of which they cannot be divested without their con- 
sent. 

This consent of the creditor may be inferred, but not from slight 
evidence ; thus, not from receiving the single partner's note as a 
collateral security, nor from receiving interest from him on the joint 
debt, nor from a mere change in the head of the account, charging 
the single partner and not the firm. Still, as the creditor certainly 
can assent to this arrangement, and accept the indebtedness of one 
partner instead of that of the firm, so it must be equally clear that 
such assent and intention will bind him, if distinctly proved by cir- 
cumstances or by any evidence. 



SECTION X. 
LIMITED PARTNERSHIP. 

These have been introduced into some of our States, by statutes, 
which differ somewhat in their provisions. Generally, they require, 
first, one or more general partners, whose names shall be known ; 
secondly, special partners, who do not appear as members, nor pos- 
sess the powers or discharge the duties of actual partners ; thirdly, 
the sum to be contributed by the special partners shall be actually 
paid in ; lastly, all these arrangements, with such other information 
as may be needed for the security of the public, must be verified 
under oath, signatures of all the parties, and acknowledgment before 
a magistrate, and correctly published. When these requisites are 
complied with, the special partners may lose all they have put in, 
but cannot be held to any further responsibility. But any neglect 
of them, or any material mistake in regard to them, even on the 
part of the printer of the advertisement, wholly destroys their effect; 
and then the special partner is liable for the whole debt, precisely 
like a general partner. 

In a New York case, the amount contributed by the special 
partner was, by mistake of the printer, stated at $5,000, instead of 

35 



546 THE PROPERTY RIGHTS OF 

$2,000, and it was held that the associates were liable as general 
partners, although the plaintiff did not show that he was actually 
misled by the error. In another New York case, it was held that an 
assignment of the partnership property, providing for the payment 
of a debt due to the special partner, ratably with the other creditors 
of the firm, or before all the other creditors are satisfied in full for 
their debts, is void as against the creditors ; but it would be valid 
as against the assignor and those creditors who think proper to 
affirm it. 

FORMS ANNEXED TO THIS CHAPTER. 

(171.) Articles of copartnership between two tradesmen. 
(172.) Shorter form of articles of copartnership. 

(173.) Certificate of a limited partnership, with acknowledgment and 
oath. 

(171.) 

ARTICLES OF COPARTNERSHIP BETWEEN TWO TRADESMEN. 

Articles of agreement, Had, made, concluded, and agreed upon, 
this day of a.d. between of 

trader, and of trader. 

First of all, the said and have agreed, and by 

these presents do agree, to become copartners together in the art or trade 
of and all things thereto belonging, and also in buying, sell- 

ing, vending, and retailing all sorts of wares, goods, and commodities 
belonging to the said trade of which said copartnership, it is 

agreed, shall continue from for and during and unto the full 

end and term of years, from thence next ensuing, and fully 

to be complete and ended. And to that end and purpose he the said 
hath the day of date of these presents, delivered in, as stock, 
the sum of and he the said the sum of 

to be used, laid out, and employed in common trade between them, for 
the management of the said trade of to their utmost benefit 

and advantage. And it is hereby agreed between the said parties, and the 
said copartners, each for himself respectively, and for his own particular 
part, and for his executors and administrators, that each doth covenant, 
promise, and agree, to and with the other of them, his executors and 
administrators, by these presents, in manner and form following (that is to 
say), that they the said copartners shall not nor will, at any time hereafter, 
use, exercise, or follow the trade of aforesaid, or any other 

trade whatsoever, during the said term, to their private benefit and advan- . 
tage; but shall and will, from time to time, and at all times, during the 
said term (if they shall so long live), do their and each of their best and 
utmost endeavors, in and by all means possible, to the utmost of their skill 
and power, for their joint interest, profit, benefit, and advantage, and 
truly employ, buy, sell, and merchandise, with the stock aforesaid, and 



A CITIZEN OF THE UNITED STATES. 547 

the increase thereof in the trade of aforesaid, without any 

sinister intentions or fraudulent endeavors whatsoever. And also that 
they the said copartners shall and will, from time to time, and at all times 
hereafter, during the said term, pay, bear, and discharge, equally between 
them, the rent of the shop, which they the said copartners shall rent or 
hire, for the joint exercising or managing of the trade aforesaid. And 
that all such gain, profit, and increase as shall come, grow, or arise for 
or by reason of the said trade, or joint business as aforesaid, shall be from 
time to time, during the said term, equally and proportionably divided 
between them the said copartners, share and share alike. And also that 
all such losses as shall happen in the said joint trade, by bad debts, ill 
commodities, or otherwise without fraud or covin, shall be paid and borne 
equally and proportionably between them. And further, it is agreed by 
and between the said copartners, that there shall be had and kept from 
time to time, and at all times, during the said term and joint business and 
copartnership together as aforesaid, perfect, just, and true books of 
accounts, wherein each of the said copartners shall duly enter and set 
down, as well all money by him received, paid, expended, and laid out, in 
and about the management of the said trade, as also all wares, goods, 
commodities, and merchandises, by them or either of them bought and 
sold by reason or means or upon account of the said copartnership, and all 
other matters and things whatsoever, to the said joint trade, and the 
management thereof, in any wise belonging or appertaining, which said 
books shall be used in common between the said copartners, so that either 
of them may have free access thereto without any interruption of the other. 
And also that they the said copartners, once in three months, or oftener if 
need shall require, upon the reasonable request of one of them, shall make, 
yield, and render, each to the other, or to the executors or administrators 
of the other, a true, just, and perfect account of all profits and increase, 
by them or either of them made, and of all losses by them or either of 
them sustained, and also of all payments, receipts, and disbursements 
whatsoever, by them or either of them made or received, and of all other 
things by them or either of them acted, done, or suffered in the said 
copartnership and joint business as aforesaid; and the same account being 
so made, shall and will clear, adjust, pay, and deliver, each unto the other, 
at the time of making such account, their equal shares of the profits so 
made as aforesaid; and at the end of the said term of or other 

sooner determination of these presents (be it by the death of one of the 
said partners or otherwise) , they the said copartners, each to the other, or 
in case of the death of either of them, the surviving party to the executors 
or administrators of the party deceased, shall and will make a true, just, 
and final account of all things as aforesaid, and divide the profits afore- 
said, and in all things well and truly adjust the same, and that also upon 
the making of such final account, all and every the stock and stocks, as 
well as the gains and increase thereof, which shall appear to be remaining, 
whether consisting of money, wares, debts, shall be equally 

parted and divided between them the said copartners, their executors or 
administrators, share and share alike. 
In witness whereof, &c. 

(Signatures.) 



548 THE PROPERTY RIGHTS OF 

Various Covenants and Clauses which may be introduced in Articles of 
Copartnership , according to circumstances. 

NOT TO TRUST ANT ONE WHOM THE COPARTNER SHALL FORBID. 

And that neither of the said parties shall sell or credit any goods or 
merchandise belonging to the said joint trade, to any person or persons, 
after notice in writing from the other of the said parties, that such person 
or persons are not to be credited or trusted. 

NOT TO RELEASE ANT DEBT WITHOUT CONSENT, ETC. 

And that neither of the said parties shall, without the consent of the 
other, release or compound any debt or demand, due or coming to them on 
account of their said copartnership, except for so much as shall actually be 
received, and brought into the stock or cash account of the said partner- 
ship. 

NOT TO BE BOUND, OR INDORSE BILLS, ETC., FOR ANT ONE WITHOUT 
CONSENT, ETC. 

And that neither of the said parties shall, during this copartnership, 
without the consent of the other, enter into any deed, covenant, bond, or 
judgment, or become bound as bail or surety, or give any note, or accept 
or indorse any bill of exchange for himself and partner, without the con- 
sent of the other first had and obtained, with or for any person what- 
soever. 

NEITHER PARTT TO ASSIGN HIS INTEREST, ETC. 

And it is agreed between the said parties, that neither of the said 
parties shall, without the consent of the other, obtained in writing, sell or 
assign his share or interest in the said joint trade, to any person or per- 
sons whatsoever. 

PRINCIPAL CLERK TO BE RECEIVER OF MONETS, ETC. 

That the principal clerk for the time being shall be the general receiver 
of all the money belonging to the said joint trade, and shall thereout pay 
all demands ordered by the said parties, and shall from time to time pay 
the surplus cash to such banker as the said partners shall nominate. 

PARTIES TO DRAW QUARTERLT, ETC. 

That it shall be lawful for each of them to take out of the cash of the 
joint stock the sum of quarterly, to his own use, the same to 

be charged on account, and neither of them shall take any further sum fol 
his own separate use, without the consent of the other in writing; and any 
such further sum, taken with such consent, shall draw interest after the 
rate of per cent, and shall be payable, together with the interest 

due, within days after notice in writing given by the other of 

the said parties. 



A CITIZEN OF THE UNITED STATES. 549 

(172.) 
SHORTER FORM OF ARTICLES OF COPARTNERSHIP. 

• Articles of agreement, Made the day of 

one thousand eight hundred and between (the names and resi- 

dence of the two parties) , as follows : The said parties above named have 
agreed to become copartners in business, and by these presents do agree 
to be copartners together under and by the name or firm of in 

the buying, selling, and vending all sorts of goods, wares, and merchan- 
dise to the said business belonging, and to occupy the their 
copartnership to commence on the day of and to 
continue and to that end and purpose the said (here state the 
contributions of each of the parties'), to be used and employed in common 
between them for the support and management of the said business, to their 
mutual benefit and advantage. And it is agreed by and between the parties 
to these presents, that at all times during the continuance of their copart- 
nership, they and each of them will give their attendance, and do their and 
each of their best endeavors, and to the utmost of their skill and power 
exert themselves for their joint interest, profit, benefit, and advantage, 
and truly employ, buy, sell, and merchandise with their joint stock, and 
the increase thereof, in the business aforesaid. And also that they shall 
and will at all times during the said copartnership bear, pay, and dis- 
charge equally between them all rents and other expenses that may be 
required for the support and management of the said business; and that 
all gains, profit, and increase that shall come, grow, or arise from or by 
means of their said business, shall be divided between them (state whether 
equally, or in what proportions) and all loss that shall happen to their said 
joint business, by ill commodities, bad debts, or otherwise, shall be borne 
and paid between them. 

And it is agreed by and between the said parties that there shall be 
had and kept at all times during the continuance of their copartnership, 
perfect, just, and true books of account, wherein each of the said copart- 
ners shall enter and set down, as well all money by them or either of them 
received, paid, laid out, and expended in and about the said business, as 
also all goods, wares, commodities, and merchandise, by them or either of 
them, bought or sold by reason or on account of the said business, and all 
other matters and things whatsoever to the said business and the manage- 
ment thereof in any wise belonging; which said books shall be used in 
common between the said copartners, so that either of them may have 
access thereto, without any interruption or hinderance of the other. And 
also the said copartners, once in or oftener if necessary, shall 

make, yield, and render, each to the other, a true, just, and perfect inven- 
tory and account of all profits and increase by them, or either of them, 
made, and of all losses by them, or either of them, sustained; and also all 
payments, receipts, disbursements, and all other things by them made, 
received, disbursed, acted, done, or suffered in this said copartnership and 
business; and the same account so made shall and will clear, adjust, pay, 
and deliver, each to the other, at the time, their just share of the profits so 
made as aforesaid. 



550 THE PROPERTY RIGHTS OF 

And the said parlies hereby mutually covenant and agree to and with 
each other, that, during the continuance of the said copartnership, neither 
of them shall nor will indorse any note, or otherwise become surety for any 
person or persons whomsoever, without the consent of the other of the said 
copartners. And at the end, or other sooner determination of their copart- 
nership, the said copartners, each to the other, shall and will make a true, 
just, and final account of all things relating to their said business, and in 
all things truly adjust the same; and all and every the stock and stocks, 
as well as the gains and increase thereof, which shall appear to be remain- 
ing, either in money, goods, wares, fixtures, debts, or otherwise, shall be 
divided between them. 

In witness whereof, &c. 

{Signatures.) 



(173.) 

CERTIFICATE OF A LIMITED PARTNERSHIP, WITH ACKNOWLEDGMENT 

AND OATH. 

This is to certify, That the undersigned have, pursuant to the pro- 
visions of the statute of the State of formed a limited part- 
nership, under the name or firm of that the general nature of 
the business to be transacted is (describe the business), and that 
is the general partner and is the special partner , and that the 
said (the special partner) hath contributed the sum of dollars 
as capital towards the common stock, and that the said partnership is to 
commence on the day of and is to terminate on the 
day of 18 

Dated this day of one thousand eight hundred 

and 

(Signatures.) 

County of ss. On the day of 

one thousand eight hundred and before me came 

to be the individuals described in and who executed the above certificate, 
and they severally acknowledged that they executed the same. 

(Signature.) 

County of ss. 

the general partner named in the above certificate, being duly sworn, 
doth depose and say, that the sum specified in the^said certificate to have 
been contributed by the special partner to the common stock has been 
actually and in good faith paid in cash. 

Sworn this day of 18 , before me, 

(Signature.) 

In some of the States, the oath should he made hy the general 
partner ; and it would always be safe for all the partners, general 
and special, to take the oath, and be included in the certificate. 



A CITIZEN OF THE UNITED STATES. 551 



CHAPTER XXI. 

AEBITEATION. 

SECTION I. 
OF THE SUBMISSION ANJD AWARD. 

By the submission (or reference) is meant the submission of the 

question or questions to arbitrators. 

The law favors arbitration in many respects as a peaceable and 
inexpensive mode of settling difficulties. Parties may agree to 
refer a question by an oral agreement, or by a written agreement. 
The form is not essential. But it is always best to reduce the 
agreement to writing, and to express it carefully. But parties may, 
in many of our States, go before a magistrate and agree to refer in 
the manner pointed out by the statute. In all of them a case may 
be taken out of court and submitted to referees under an order of 
court. 

The first essential of an award, without which it has no force 
whatever, is, that it be conformable to the terms of the submission. 
The authority given to the arbitrators should not be exceeded; 
and the precise question submitted to them, and neither more nor 
less, should be answered. Neither can the award affect strangers 
(or those who are not parties to it) ; and, if one part of it is that a 
stranger shall do some act, it is not only of no force as to the 
stranger, but of no force as to the parties, if this unauthorized part 
of the award cannot be taken away without affecting the rest of the 
award. 

Nor can it require that one of the parties should make a payment, 
or do any similar act, to a stranger. But if the stranger is mentioned 
in an award only as agent of one of the parties, which he actually 
is, or as trustee, or as in any way paying for, or receiving for, one 
of the parties, this does not invalidate the award. And in favor of 
awards, it has been said that this will be supposed where the con- 
trary is not indicated. 

If the award embrace matters not included in the submission, it 
is fatal. If, however, the portion of the award which exceeds the 
submission can be separated from the rest without affecting the 
merits of the award, it may be rejected, and the rest will stand ; 
otherwise the whole is void. If the submission specify the particu- 



552 THE PROPERTY RIGHTS OF 

lars to which it refers, or if, after general words, it make specific 
exceptions, its words must be strictly followed. 

If these words are very general, they will he construed liberally, 
but yet without extending them beyond their fair meaning. On the 
other hand, all questions submitted must be decided, unless the sub- 
mission provides otherwise ; and either party may object to an 
award, that it omits the decision of some question submitted ; but 
the objection is invalid if it be shown that the party objecting him- 
self withheld that question from the arbitrators. Nor is it necessary 
that the award embrace all the topics which might be considered 
within the terms of a general submission. It is enough if it pass 
upon those questions brought before the arbitrators, and they are so 
far distinct and independent that the omission of others leaves no 
uncertainty in the award. If the award does not embrace all of the 
matters within the submission which were brought to the notice of 
the arbitrators, it is altogether void. 

In the next place, an award must be certain ; that is, it must be 
so expressed that no reasonable doubt can be entertained as to the 
meaning of the arbitrators, the effect of the award, or the rights and 
duties of the parties under it. For the very purpose of the submis- 
sion, and the end for which the law favors arbitration, is the final 
settlement of all questions and disputes; and this is inconsistent 
with uncertainty. 

In the next place, the award must be possible ; for an award 
requiring that to be done which cannot be done is senseless and use- 
less. But the impossibility which vitiates an award is one w T hich 
belongs to the nature of the thing, and not to the accidental dis- 
ability of the party at the time. Thus, if he be ordered to pay 
money on a day that is past, this is void ; so if he be required to 
give up a deed which he neither has nor may expect to have ; but 
if he be directed to pay money, the award is good, although he has 
no money, for it creates a valid debt against him. Nor can a party 
avoid an award on the ground of an impossibility created by him- 
self, after the award, or indeed beforehand, if he created it for the 
purpose of evading an expected award. 

This impossibility may be actual, or it may be that created by 
law ; for an award which requires that a party should do what the 
law forbids him to do is void, either in the whole, or else for so 
much as is thus against the law, if that illegal part can be severed 
from the rest. 

An award must be reasonable ; if it be of things in themselves 
of no value or advantage to the parties, or out of all proportion to 
the justice and requirements of the case, or if it undertake to deter- 
mine for the parties what they should determine for themselves, as, 
for instance, that the parties should intermarry, it is void. 



A CITIZEN OF THE UNITED STATES. 553 

Lastly, the award must be final and conclusive. This necessity 
springs also from the very purpose for which the law favors arbitra- 
tion ; namely, the settlement and closing of disputes. It is not a 
valid objection to an award, that it is upon a condition, if the con- 
dition be clear and certain, consistent with the rest of the award, in 
itself reasonable, and such that there could be no doubt whether it 
were performed or not, or what were the rights or obligations de- 
pendent upon it. 

An award may be open to any or all of these objections in part, 
without being necessarily void in the whole. So much of it as is 
thus faulty is void ; but if this can be severed distinctly from the 
residue, leaving a substantial, definite, and unobjectionable award 
behind, this may be done, and the award then will take effect. It 
is therefore void in the whole, because bad in part, only where this 
part cannot be severed from the residue ; or where, if it be severed 
and amended, leaving the residue in force, one of the parties will 
be held to an obligation imposed upon him, but deprived of the 
advantage or compensation which it was intended that he should 
have. Generally, in the construction of awards, they are favored 
and enforced by the courts, wherever this can properly be done. 

If the submission be in the most general terms, and the award 
equally so, covering "all demands and questions" between the par- 
ties, either party may still show that a particular demand included 
in the award either did not exist, or was not known to exist when 
the submission was entered into, or that it was not brought before 
the notice of the arbitrators, or considered by them ; and then the 
award will not be permitted to affect this demand. 

If, by an award, money is to be paid in satisfaction of a debt, 
this implies an award of a release on the other side, and makes this 
release a condition to the payment. 

There is no especial form of an award necessary in this country. 
If the submission requires that it should be sealed, it must be so. 
And if the submission was made under a statute, or under a rule of 
court, the requirements of the statute or the rule should be followed. 
But even here mere formal inaccuracies would seldom be permitted 
to vitiate or avoid the reward. 

If the submission contains other directions or conditions, as that 
it should be delivered to the parties in writing, or to each of the 
parties, such directions must be substantially followed. Thus, in 
the latter case, it has been held that it is not enough that a copy be 
delivered to one of the parties on each side, but each individual 
party must have one. 

It may happen, where an award is offered in defence, or as the 
ground of an action, that it is open to no objection whatever for 



554 THE PROPERTY RIGHTS OF 

any thing which it contains or which it omits ; and yet it may be set 
aside for impropriety or irregularity in the conduct of the arbitra- 
tors, or in the proceedings before them. Awards are thus set aside 
if " procured by corruption or undue means." This rule rests, in- 
deed, on the common principle that fraud vitiates and avoids every 
transaction. 

So, too, it may well be set aside if it be apparent on its face that 
the arbitrator has made a material mistake of fact or of law. It 
must, however, be rather a strong case in which the court would 
receive evidence of a mere mistake, either in fact or in law, which 
did not appear in the award, and was not supposed to spring from 
or indicate corruption. 

Other instances of irregularity are the omission to examine 
witnesses ; or an examination of them when the parties were not 
present, and their absence was for good cause ; or a concealment by 
either of the parties of material circumstances : for this would be 
fraud. So if the arbitrators, in case of disagreement, were author- 
ized to choose an umpire, but drew lots which of them should choose 
him. But it has been held enough that each arbitrator named an 
umpire, and lots were drawn to decide which of these two should be 
taken, because it might be considered that both of these men were 
agreed upon. And if an umpire be appointed by lot, or otherwise 
irregularly, if the parties agree to the appointment, and Gonfirm 
it expressly or impliedly by attending before him, with a full 
knowledge of the manner of the appointment, this covers the irreg- 
ularity. 



SECTION II. 
THE REVOCATION OF A SUBMISSION TO ARBITRATORS. 

It is an ancient and well-established rule, that either party may 
revoke his submission at any time before the award is made ; and 
by this revocation render the submission wholly ineffectual, and 
of course take from the arbitrators all power of making a binding 
award. And, generally, this power exists until the award is made. 

In this country, our courts have always excepted from this rule 
submissions made by order or rule of court ; for a kind of juris- 
diction is held to attach to arbitrators under a rule, and the sub- 
mission is quite irrevocable, except for such causes as make it 
necessarily inoperative. 

There is a strong reason why a submission by order of court, or 
before a magistrate, should be preferred where it can be had, from 
the fact above stated, that the law permits any party who finds an 



A CITIZEN OF THE UNITED STATES. 555 

award is going against him to revoke his submission or reference 
when he will, before the award is made, provided the award was 
only by agreement out of court, or not before a magistrate. In 
some of our States, the statutes authorizing and regulating arbitra- 
tion provide for the revocation of the submission. 

It should be stated, however, that, as an agreement to submit is 
a valid contract, the promise of each party being the consideration 
for the promise of the other, a revocation of the agreement or of the 
submission is a breach of the contract, and the other party has his 
claim for damages; and damages would generally include all the 
expenses the plaintiff has incurred about the submission, and all that 
he has lost by the revocation, in any way. 

If either party exercise this power of revocation, he must give 
notice in some way, directly or indirectly, to the other party ; and 
until such notice, the revocation is inoperative. 

Bankruptcy or insolvency of either or both parties does not 
necessarily operate as a revocation, unless the terms of the agree- 
ment to refer, or the provisions of the insolvent law, require 
it. But the assignees acquire whatever power of revocation the 
bankrupt or insolvent possessed, and, generally, at least, no further 
power. 

The death of either party before the award is made vacates the 
submission, if that were made out of court, unless it provides in 
terms for the continuance and procedure of the arbitration, if such 
an event occur. But a submission under a rule of court is not re- 
voked or annulled even by the death of a party. So the death or 
refusal or inability of an arbitrator to act would annul a submission 
out of court, unless provided for in the agreement ; but not one 
under a rule of court, unless for especial reasons, satisfactory to the 
court ; which would make an appointment of a substitute if it saw 
fit to continue the reference. 

It may be well to add, that, after an award is fully made, neither 
of the parties without the consent of the other, nor either nor all of 
the arbitrators without the consent of all the parties, have any 
further control over it. 

If the submission provides for any method of delivering the 
award, this should be followed. If not, it is common for the referees 
to deliver the award to the prevailing party or his attorney, on pay- 
ment by him of the fees of arbitration. Then the prevailing party 
looks to the losing party for the whole, or a part, or none of the 
costs, as the award may determine. 

The award should be sealed, and addressed to all the parties ; 
and it should not be opened except in presence of all the parties, or 
of their attorneys, or with the consent of those absent indorsed on 



5b6 THE PROPERTY RIGHTS OF 

the award. If the submission is under a rule of court, it should be 
returned to court by the arbitrators, or by the counsel receiving it, 
sealed, and opened only in court, or before the clerk, or with the 
written consent of parties. 

The submission, or agreement to refer, may be made by exchange 
of bonds, each party executing and delivering a bond to the other 
party. 

This would be a formal proceeding. But, as has been already 
said, no especial form is necessary ; and often a very simple one, 
like that below, would suffice. 

(174.) 

SIMPLE AGREEMENT TO REFER. 

Know all men, That we, of 

and of do hereby promise and agree, to and 

with each other, to submit, and do hereby submit, all questions and claims 
between us (or any specific question or claim, describing it) to the arbitra- 
ment and determination of (here name the arbitrators), whose decision and 
award shall be final, binding, and conclusive on us; (add, if there are more 
arbitrators than one, and it is intended that they may choose an umpire) and, 
in case of disagreement between the said arbitrators, they may choose an 
umpire, whose award shall be final and conclusive; (or add, if there be 
more than two arbitrators) and, in case of disagreement, the decision and 
award of a majority of said arbitrators shall be final and conclusive. 

In witness whereof, &c. 

(Signatures.) 

(175.) 

ARBITRATION BOND, ONE OR MORE ARBITRATORS. 

Know all men by these presents, That I (one of the parties), am 
held and firmly bound unto (the other party) , in the sum of 
dollars, lawful money of the United States of America, to be paid to 
the said (the other party), executors, administrators, or assigns; for which 
payment, well and truly to be made, I hereby bind myself, my heirs, 
executors, and administrators, firmly by these 

presents. Sealed with my seal. Dated the day of 

one thousand eight hundred and 

The condition of the above obligation is such, That if the 
above bounden shall well and truly submit 

to the decision of (the referee) , named, selected, and chosen arbitrator as 
well by and on the part and behalf of the said as 

of the said between whom a controversy exists, 

to hear all the proofs and allegations of the parties of and concerning 
(here set forth the claims or questions referred) 
and all matters relating thereto, and that the award of the said arbitrator 



A CITIZEN OF THE UNITED STATES. 557 

be made in writing, subscribed by him (or the?ri), and attested by a sub- 
scribing witness, ready to be delivered to the said parties on or before the 
day of next. But before proceeding to take 

any testimony therein, the arbitrator shall be sworn " faithfully and fairly 
to hear aud examine the matters in controversy between the parties to 
these presents, and to make a just award, according to the best of his (or 
their) understanding." And the said parties to these presents do hereby 
agree that judgment in the case (in question) shall be 

rendered upon the award which may be made pursuant to this submission, 
to the end that all matters in controversy in that behalf, between them, 
shall be finally concluded. Then the above obligation to be void; other- 
wise to remain in full force and virtue. 

(Signature.) (Seal.) 
Sealed and delivered in presence of 

[To make the contract complete, the other party should execute and 
deliver a counterpart to this bond.] 



(176.) 

AWARD OF ARBITRATORS. 

TO ALL TO WHOM THESK PRESENTS SHALL COME, We (names of tkt 

arbitrators), to whom was submitted as arbitrators the matters in con- 
troversy existing between as by the condition of their 
respective bonds of submission, executed by the said parties respectively, 
each unto the other, and bearing date the day of 
one thousand eight hundred and more fully appears. 

Now, therefore, know ye, That we the arbitrators 

mentioned in the said bonds, having been first duly sworn according to 
law, and having heard the proofs and allegations of the parties, and 
examined the matters in controversy by them submitted, do make this 
award in writing; that is to say, the said (here follows the award). 

In witness whereof, have hereunto subscribed these presents, 

this day of one thousand eight hundred and 

(Signatures.) 
In the presence of 



558 THE PROPERTY RIGHTS OF 



CHAPTER XXII. 

THE CAEKIAGE OF GOODS AND 

PASSENGEES. 

SECTION I. 
A PRIVATE CARRIER. 

One who carries goods for another is either a private carrier or 
a common carrier. The law makes an important distinction between 
them. 

A private carrier is one who carries for others once, or some- 
times, but who does not pursue the business of carrying as his usual 
and professed occupation. The contract between him and the 
owner of the goods which he carries is one of service, and is 
governed by the ordinary rules of law. Each party is bound to 
perform his share of the contract. Such a carrier must receive, 
care for, carry, and deliver the goods, in such wise as he bargains 
to do. 

If he carries the goods for hire, whether actnally paid or dne, 
he is bound to use ordinary diligence and care ; by which the law 
means such care as a man of ordinary capacity would take of his 
own property under similar circumstances. If any loss or injury 
occur to the goods while in his charge, from the want of such care 
or diligence on his part, he is responsible. But if the loss be 
chargeable as much to the fault of the owner as of the carrier, he 
is not liable. The owner must show the want of care or diligence 
on the part of the private carrier, to make him liable ; but slight 
evidence tending that way would suffice to throw upon him the 
burden of accounting satisfactorily for the loss. And if there is 
such negligence on the part of the carrier, or of a servant for whom 
he is responsible, the carrier is liable, although the loss be caused 
primarily by a defect in the thing carried. 

If he carries the goods without any compensation, paid or prom- 
ised, he is, in the language of the law, a gratuitous bailee, or man- 
datary: he is now bound only to slight care; which is such care as 
every person, not insane or fatuous, would take of his own prop- 
erty. For the want of this care, which would be gross negligence, 
he is responsible, but not for ordinary negligence. 

We sum np what may be said of the private carrier in the 
remark, that the general rules which regulate contracts and mutual 



A CITIZEN OF THE UNITED STATES. 559 

obligations apply to the duties and the rights of a private carrier, 
with little or no qualification. But it is otherwise with a common 
carrier. 

SECTION II. 
THE COMMON CARRIER. 

The law in relation to the rights, the duties, and the responsibili- 
ties of a common carrier is quite peculiar. The reasons for it are 
discernible, but it rests mainly upon established usage and custom. 
And as these usages have changed considerably in modern times, 
this law has undergone important modifications. 

He is a common carrier " who undertakes, for hire, to transport 
the goods of such as choose to employ him from some known and 
definite place or places to other known and definite place or places." 
He is one who undertakes the carriage of goods as a business; and 
it is mainly this which distinguishes him from the private carrier. 

The rights and responsibilities of the common carrier may be 
briefly stated thus : He is bound to take the goods of all who offer, 
if he be a carrier of goods, and the persons of all who offer, if 
he be a carrier of passengers; and to take due care and make 
due transport and delivery of them. He has a lien on the goods 
which he carries, and on the baggage of passengers, for his com- 
pensation. He is liable for all loss or injury to the goods under his 
charge, although wholly free from negligence, unless the loss hap- 
pens from the act of God, or from the public enemy. These three 
rules will be considered in the next section. 

The important thing to be remembered is, that a private carrier 
is not liable for injury to persons, or loss of or injury to goods, with- 
out fault or negligence on his part ; but a common carrier is liable, 
without any fault or negligence on his part. 

Truckmen or draymen, porters, expressmen, and others who 
undertake the carriage of goods for all applicants from one city or 
town to another, or from one part of a city or town to another, are 
chargeable as common carriers. So, proprietors of stage-coaches are 
chargeable as common carriers of passengers, and of the baggage 
of passengers ; or of the baggage of others, if they so advertise 
themselves. So are hackney-coachmen within their accustomed 
range. 

If drivers of stages or omnibuses commonly carry and receive 
p iy for goods or parcels which are not the baggage of passengers, 
and are held out or advertised, or generally known, as so carrying 
them, they are common carriers of goods, and the proprietors are 
liable for *the loss of such parcels, although neither they nor the 



560 THE PROPERTY RIGHTS OF 

drivers were in fault. But if there is no such habit or usage, and 
the driver receives such a parcel to be carried somewhere, and is 
paid for it, the driver carries it as a private carrier, and not as 
a common carrier, and is chargeable only for negligence or fault. 
And if the line of carriages is established for passengers, and the 
driver does not account for what is paid him for occasional parcels, 
but takes it as his own perquisite, the proprietors are not answer- 
able even for the driver's fault or negligence, unless circumstances 
in some way bring the fault home to them. 

In this country, in recent times, the business of carrying goods 
and passengers is almost monopolized by what are called express- 
men, by railroads, or by lines of steam-packets along our coasts, or 
upon our navigable streams or lakes. All these are undoubtedly 
common carriers ; and although their peculiar method of carrying 
on this business is new, there can be no doubt of their being, to all 
intents and purposes, common carriers. 

Ordinary sailing-vessels are sometimes said to be common car- 
riers. We should be disposed to restrict this term, however, to 
regular packets ; or, at most, to call by this name general freighting 
ships. It is not, however, necessary to consider this question, as 
water-borne goods are now almost always carried under bills of 
lading, which determine the relations and respective rights of the 
parties. The law of bills of lading is stated in the next section. 

The boatmen on our rivers and canals are common carriers ; and 
ferrymen are common carriers of passengers by their office, and may 
become common carriers of goods by taking up that business. A 
steamboat usually employed as a carrier may do something else, as 
tow a vessel out of a harbor, or the like ; and the character of com- 
mon carrier does not attach to this especial employment, and carry 
with it its severe liabilities. Therefore, for a loss occurring to a 
ship in her charge while so employed, the owner of the steamer is 
not liable without negligence on his part, or on the part of those 
whom he employs. 

The same person may be a common carrier, and also hold other 
offices or relations. He may be a warehouseman, a wharfinger, or 
a forwarding merchant. The peculiar liabilities of the common 
carrier do not attach to either of these offices or employments. 
Thus, a warehouseman is liable for loss of the goods which be takes 
for storage, only in case of his own negligence : he is not, as a com- 
mon carrier is said to be, an insurer of the goods. The question 
then arises, when the liability of such a person is that of a ware- 
houseman, and when it is that of a carrier. 

If a carrier receives goods to be stored until he can carry them, 
— a canal-boatman, for example, — or if, at the end of the journey, 



A CITIZEN OF THE UNITED STATES. 561 

he stores them for a time, for the safety of the goods or the con- 
venience of the owner, while thus stored he is liable only as 
warehouseman. But if he puts them into his store or office ouly 
for a short time, and for his own convenience, either at the begin- 
ning or end of the transit (or journey), they are there in his hands 
as carrier. 

Where these relations seem to unite and mingle in one person, it 
may be said to be the general rule, that, wherever the deposit, in 
whatever place or building, is secondary and subordinate to the 
carriage of the goods, which is therefore the chief thing, the party 
taking the goods is then a carrier, and is liable as such ; and other- 
wise, he is a depositary only of some kind. If, therefore, goods are 
delivered to a carrier, or at his depot or receiving-room, with direc- 
tions not to carry them until further orders, he is only a depositary, 
and not a carrier, until those orders are received ; but when they 
are received, he becomes a carrier ; and if the goods are afterwards 
lost or injured before their removal, he is liable as a common car- 
rier, without negligence or fault on his part. 

SECTION III. 
BILLS OF LADING. 

The rights and obligations of the ship-owner and the shipper? are 
stated generally in an instrument of which the origin is lost in its 
antiquity, and which is now in universal use among commercial 
nations, with little substantial variety of form. It is called the Bill 
of Lading. It should contain the names of the consignor,, of the con- 
signee, of the vessel, of the master, of the place of departure, and of 
the place of destination ; also the price of the freight, with primage 
and other charges, if any there be, and, either in the body of the bill 
or in the margin, the marks and numbers of the things shipped, with 
sufficient precision to designate and identify them. 

It should be signed by the master of the ship* who, by the strict 
maritime law, has no authority to sign a bill of lading until the 
goods are actually on board. There is some relaxation of this rule 
in practice, but it should be avoided. 

Usually one copy is retained by the master, and three copies are 
given to the shipper ; one of them he usually retains, another he 
sends to the consignee with the goods, and the other he sends to 
the consignee by some other conveyance. 

The delivery of the goods promised in the bill is to the consignee, 
or his assigns ; and the consignee may designate his assigns by 
writing on the back of the bill, " Deliver the within-named goods 
to A B," and signing this order ; or the consignee may indorse the 



562 THE PROPERTY RIGHTS OF 

bill with his name only in blank, and any one who acquires an 
honest title to the goods and to the bill may write over the signa- 
ture an order of delivery to himself. The consignee has this power, 
if such be the usage, even if the word " assigns" be omitted. Such 
indorsement not only gives the indorsee a right to demand the 
goods, but makes him the owner of the goods. 

As the bill of lading is evidence against the ship-owner as to the 
reception of the goods, and their quantity and quality, it is common 
to say " contents unknown," or " said to contain," &c. But without 
any words of this kind, the bill of lading is not conclusive against the 
ship-owner in favor of the shipper, because he may show that its 
statements were erroneous through fraud or mistake. But the ship- 
owner or master is bound much more strongly by the words of the 
bill of lading, in favor of a third party, who has bought the goods 
for value and in good faith, on the credit of the bill of lading. In a 
case which occurred in New York, the court said that, as between 
the shipper of the goods and the owner of the vessel, a bill of lading 
may be explained or corrected as far as it is a receipt, that is, as to 
the quantity of the goods shipped, and the like ; but as between the 
owner of the vessel and an assignee of the bill, for a valuable con- 
sideration, paid on the strength of the bill of lading, it may not be 
explained or corrected; because the master, by signing the bill, 
authorizes the purchaser to believe the goods are what the bill says 
they are. 

Receipts in the nature of a bill of lading, and sometimes so 
called, are in common use by our expressmen and other common 
carriers by land ; and the law of bills of lading would apply to such 
receipts, excepting so far as the "difference between a maritime bill 
of lading and a land bill of lading made a modification of the law 
necessary. 

SECTION IV. 

THE OBLIGATION OF THE COMMON CARRIER TO RECEIVE 
AND CARRY GOODS OR PASSENGERS* 

He cannot refuse to receive and carry goods offered, without good 
cause ; for, by his openly announcing himself in any way as engaged 
in this business, he makes an offer to the public which becomes a 
kind of contract as to any one who accepts it. He may demand his 
compensation, however; and, if it be refused, he may refuse to 
carry the goods; nor is he bound to carry them if security be 
offered to him, but not the money. But if the freight-money be 
not demanded, the owner of the goods, if he is able, ready, and 
willing to pay it, has all his rights, although he does not make a 



A CITIZEN OF THE UNITED STATES. 563 



formal tender of the money. A carrier may refuse if his means of 
carriage are already fully employed. But, in a case where a rail- 
way company, being common carriers, had issued excursion-tickets 
for a journey, it was held that they were not excused from carrying 
passengers according to their contract, upon the ground that there 
was no room for them in their conveyance ; and that in order to 
avail themselves of this defence, they should make their contract 
conditional upon there being room. If the common carrier cannot 
carry the goods without danger to them, or to himself or other 
goods ; or without extraordinary inconvenience ; or if they are 
not such goods as it is his regular business to carry, — he is ex- 
cused for not carrying them. He is always entitled to his usual 
charge ; but not to extraordinary compensation, unless for extraor- 
dinary service. 

The common carrier of goods is bound to receive them in a 
suitable way, and at suitable times and places. If he has an office 
or station, he must have proper persons there, and proper means of 
security. During the transit, and at all stopping-places, due care 
must be taken of all goods ; and that means the kind and measure 
of care appropriate for goods of that description. If he have notice, 
by writing on the article or otherwise, of the need of peculiar care, 
— as, " Glass, with great care," or " This side uppermost," or " To 
be kept dry," — he is bound to comply with such directions, sup- 
posing them not to impose unnecessary care or labor. 

If lie carry passengers, he must receive all who offer, unless he 
has some special and sufficient reason for refusing. 

In a case tried before the Supreme Judicial Court of Massa- 
chusetts, it was held, that if an innkeeper who has frequently 
entered a railroad depot and annoyed passengers by soliciting them 
to go to his inn receives notice from the superintendent of the depot 
that he must do so no more, and he nevertheless repeatedly enters 
the depot for the same purpose, and afterwards obtains a ticket for 
a passage in the cars, with an actual intention of entering the cars 
as a passenger, and goes into the depot on his way to the cars, and 
the superintendent, believing that he has entered the depot to solicit 
passengers, orders him to go out, and he does not exhibit his ticket, 
nor give notice of his real intention, but presses forward towards 
the cars, and the superintendent and his assistants therefore forcibly 
remove him from the depot, using no more force than is necessary 
for that purpose, such removal is justifiable, and not an indictable 
assault and battery. 

A common carrier is bound to carry Ms passengers over the 
whole route, and at a proper speed, or supply proper means of trans- 
port ; to demand only a reasonable or usual compensation ; to notify 



t>64 THE PROPERTY RIGHTS OF 

his passengers of any peculiar dangers ; to treat all alike, unless there 
be actual and sufficient reason for the distinction, as in the filthy- 
appearance, dangerous condition, or misconduct of a passenger ; and 
to behave to all with civility and decorum. 

He must also have proper carriages, and keep them in good con- 
dition, and not overload them; and suitable horses and drivers; 
stop at the usual places, with proper intervals for rest or food; 
take the proper route ; and drive at proper speed ; and leave the 
passengers at the usual stopping-places, or wherever he agrees to. 
In none of these things can he depart from what is usual and proper 
at his own pleasure. And if by any breach of these duties a 
passenger is injured, the carrier is responsible. So if he puts his 
passengers in peril, and one of them be hurt by an effort to escape, 
as in jumping off, it is no defence for the carrier to show that he 
would have been safe if he had remained. 

In one case, it was held that a common carrier who had received 
a pickpocket as a passenger on board his vessel, and taken his fare, 
could not put him on shore so long as he was not guilty of any im- 
propriety. But this may be doubted. The common carrier must 
certainly employ competent and well-behaved persons for all duties ; 
and for failure in any of the particulars of his duties and obligations 
he is responsible not only to the extent of any damage caused there- 
by, but also, in many cases, for pain and injury to the feelings. He 
is also bound to deliver to each passenger all his baggage at the end 
of his journey ; and is held liable if he delivers it to a wrong party 
on a forged order, and without personal default. 

Lastly, he must make due delivery of the goods at the proper 
time, in the proper way, and at the proper place, and to the proper 
person ; and this person should be some one who was authorized by 
the owner or sender to receive the goods. 

If a party authorized to receive the goods refuse, or is unable, 
to do so, the carrier must keep them for the owner, and with due 
care ; but now under the liability of a warehouseman, and not of a 
carrier: that is, he is now liable only for fault of some kind. 

So the carrier must keep the goods for the owner, if he has good 
reason to believe that the consignee is dishonest, and will defraud 
the owner of his property. As to the time when goods should be 
delivered, it must be within the proper hours for business, when they 
can be suitably stored ; or if the goods are delivered to the sender 
himself or at his house, then at some suitable and convenient 
hour. 

There must be no unnecessary delay, and the goods must be 
delivered as soon after a detention as may be with due diligence. 



A CITIZEN OF THE UNITED STATES. 565 

As to the way and the place at which the goods should be 
delivered, much must depend upon the nature of the goods, and 
much also upon the usage in regard to them, if such usage exists. 

The goods should be so left, and with such notice, as to secure 
the early, convenient, and safe reception of them by the person en- 
titled to have them. Something also must depend, on this point, 
on the mode of conveyance. A man may carry a parcel into the 
house, and deliver it to the owner or his servant ; a wagon or cart 
can go only to the gate, or into the yard, and there deliver what it 
carries. A vessel can go only to one wharf or another; and is 
bound to go to that which is reasonably convenient to the con- 
signee, or to one that was agreed upon ; but a vessel is not always 
bound to comply with the requirements of the consignee as to the 
very wharf the goods should be left at, but may leave the goods at 
any safe, convenient, and accessible wharf at which such goods are 
usually left. 

Where the goods are not delivered to the owner personally, or to 
his agent, immediate notice should be given to the owner. The 
carrier is generally obliged to give notice of the delivery of goods ; 
and if the owner has in any way designated how the goods may be 
delivered to himself, he is bound to obey this direction. The notice 
must be prompt and distinct. If the goods are delivered at an 
unsuitable or unauthorized place, no notice will make this a good 
delivery. 

Railroads terminate at their station ; and although goods might 
be sent by wagons to the house or store of consignees, this is not 
done, as it is considered that the railroad carrier has finished his 
transit at his own terminus. Usually the consignee of goods sent 
by railroad has notice from the consignor when to expect them ; 
and this is so common that it is seldom necessary, in fact, for the 
agents of the railroad to give notice to the consignee. But this 
should be given where it is necessary; and should be given as 
promptly, directly, and specifically as may be necessary for the pur- 
pose of the notice. 

A railroad company may be compared to owners of ships in this 
respect, that neither can take the cars or the ships farther than the 
station or the wharf, and therefore may deliver the goods there. 
But a carrier by water is bound to give notice that the goods are on 
the wharf, and is not exonerated as carrier until he gives such notice ; 
whereas, a railroad company is not bound to give notice. The rea- 
son of the difference is this : the consignee of goods sent by water 
cannot know when they will arrive ; but when goods are sent by 
rail, the time of their arrival may be known with sufficient accuracy. 



566 THE PROPERTY RIGHTS OF 

It may happen that some third party may claim the goods under 
a title adverse to that of the consignor or consignee. If the carrier 
refuse to deliver them to this third party, and it turns out that the 
claimant had a legal right to demand them, the carrier might be 
liable in damages to him. But the carrier may and should demand 
full and clear evidence of the claimant's title; and if the evidence 
be not satisfactory he may demand security and indemnity. If the 
evidence or the indemnity be withheld, he certainly should not be 
held answerable for any thing beyond that amount which the goods 
themselves would satisfy, for he is in no fault. If he delivers the 
goods to such claimant, proof that the claimant had good title is an 
adequate defence against any suit by the consignor or consignee for 
non-delivery. 



SECTION V. 
THE LIEN OF THE COMMON CARRIER. 

The legal meaning of this word, as we have said before when 

we have had occasion to use the word in preceding chapters, is the 
right of holding or detaining property until some charge against it, 
or some claim upon the owner on account of it, is satisfied. 

The common carrier has this right against all the goods he car- 
ries, for his compensation. While he holds them for this purpose, he 
is not liable for loss or injury to them as a common carrier ; that is, 
he is not liable unless the injury happen from his own fault. 

He may not only hold the goods for his compensation, but may 
recover this out of them, by any of the usual means in which a lien 
upon personal chattels is made productive. That is, he holds them 
just as if they were pledged to him by the owner as a security for 
the debt. Therefore, if the debt be not paid in a reasonable time 
after it is due and demanded, the carrier may have a decree of a 
court of equity for their sale ; or may sell them himself at auction, 
retaining his pay from the proceeds, and paying over the remainder. 
But to make this course justifiable and safe, the earner must wait a 
reasonable time, and give full notice of his intention, so that the 
owner may. have a convenient opportunity to redeem the goods ; and 
there must be proper advertisement of the sale, and every usual pre- 
caution taken to insure a favorable sale ; and the carrier must not 
himself buy the goods, and must act in all respects with entire 
honesty. 



A CITIZEN OF THE UNITED STATES. 567 

SECTION VI. 
THE LIABILITY OF THE COMMON CARRIER. 

This is perfectly well established as a rule of law, although it is 
very exceptional and peculiar. It is sometimes said to arise from 
the public carrier being a kind of public officer. But the true 
reason is the confidence which is necessarily reposed in him, the 
power he has over the goods intrusted to him, the ease with which 
he may defraud the owner of them and yet make it appear that he 
was not in fault, and the difficulty which the owner might have in 
making out proof of his default. This reason it is important to re- 
member, because it helps us to construe and apply the rules of law 
on this subject. Thus, the rule is that the common carrier is liable 
for any loss or injury to goods under his charge, unless it be caused 
by the act Of God or by the public enemy. The rule is intended to 
hold the common carrier responsible wherever it was possible that he 
caused the loss, either by negligence or design. 

Hence, the act of God means some act in which neither the 
carrier himself, nor any other man, had any direct and immediate 
agency. If, for example, a house in which the goods are at night is 
struck by lightning, or blown over by a tempest, or washed away by 
inundation, the carrier is not liable. This is an act of God, although 
man's agency interferes in causing the loss ; for without that agency, 
the goods would not have been there. But no man could have 
directly caused the loss. On the other hand, if the building was set 
on fire by an incendiary at midnight, and the rapid spread of the 
flames made it absolutely impossible to rescue the goods, this might 
be an inevitable accident if the carrier were wholly innocent, but it 
would also be possible that the incendiary was in collusion with the 
carrier for the purpose of concealing his theft ; and therefore the 
carrier would be liable for such a loss, however innocent. 

As a general rule, the common carrier is always liable for loss 
by fire, unless it be caused by lightning, an accidental fire not being 
considered an act of God, or a peril of the sea ; and this rule has 
been applied to steamboats and other vessels. So, it may be true 
that, after the lightning, the tempest, or inundation, the carrier was 
negligent, and so lost the goods which might have been saved by 
proper efforts, or that he took the opportunity to steal them. If 
this could be shown, the carrier would of course be liable ; but the 
law will not suppose this without proof, if the first and main cause 
were such that the carrier could not have been guilty in respect to 
it. So, a common carrier would be liable for a loss caused by a rob- 
bery, however sudden, unexpected, and irresistible, or by a theft. 



568 THE PROPERTY RIGHTS OF 

however wise and full his precautions, and however subtle and 
ingenious the theft, although either of these might seem to be un- 
avoidable by any means of safety which it would be at all reasonable 
to require. 

The general principles of agency extend to common carriers, 
and make them liable for the acts of their agents, done while in the 
discharge of the agency or employment. So, the knowledge of his 
agent is the knowledge of the carrier, if the agent be authorized 
expressly, or by the nature of his employment, to receive this notice 
or knowledge. But an agent for a common earner may act for 
himself, — as a stage-coachman in carrying parcels, for which he is 
paid personally and does not account with his employer, — and then 
the employer, as we have said, is not liable, unless the owner of the 
goods believed the stage-coachman carried the goods for his em- 
ployer, and was justified by the facts and apparent circumstances in 
so believing. 

A carrier may be liable beyond his own route. It is very com- 
mon for carriers, who share between them the parts of a long route, 
to unite in the business and the profits, and then all are liable for a 
loss on any part of the route. 

If they are not so united in fact, but say they are so, or say 
what indicates that they are so, they justify a sender in supposing 
they are united, and then they are equally liable. 

If a carrier takes goods to carry only as far as he goes, and then 
engages to send them forward by another carrier, he is liable as car- 
rier to the end of his own route ; he is liable also if he neglects to 
send the goods on in a proper manner ; but he is not liable for what 
may happen to them afterwards. 



SECTION VII. 
THE CARRIER OF PASSENGERS. 

The carriers of passengers are under a more limited liability than 
the carriers of goods. This is now well settled. The reason is, that 
they have not the same control over passengers as over goods ; can- 
not fasten them down, and use other means of securing them. But 
while the liability of the carrier of passengers is thus mitigated, it is 
still stringent and extreme. No proof of care will excuse the carrier 
if he loses goods committed to him. But proof of the utmost care 
will excuse him for injury done to passengers; for the carrier of 
passengers is liable for injury to them, unless he can show that he 
took all possible care, — giving always a reasonable construction to 
this phrase ; and in the case of railroad companies there is authority 



A CITIZEN OF THE UNITED STATES. 569 

for using the words in almost their literal meaning, — that is, for 
holding them liable for all injury to passengers which could have 
been possibly avoided. 



SECTION VIII. 
A. NOTICE BY THE CARRIER RESPECTING HIS LIABILITY. 

The common carrier has a right to make a special agreement 
with the senders of goods, which shall materially modify, or even 
wholly prevent, his liability for accidental loss or injury to the 
goods. 

The question is, "What constitutes such a bargain? A mere 
notice that the carrier is not responsible, or his refusal to be respon- 
sible, although brought home to the knowledge of the other party, 
does not necessarily constitute an agreement. The reason is this : 
the sender has a right to insist upon sending his goods, and the 
passenger has a right to insist upon going himself with customary 
baggage, leaving the carrier to his legal responsibility ; and the car- 
rier is bound to take them on these terms. If, therefore, the sender 
or the passenger, after receiving such notice, only sends or goes in 
silence, and without expressing any assent, especially if the notice 
be given at such time or under such circumstances as would make 
it inconvenient for the sender not to send, or for the passenger not 
to go, then the law will not presume from his sending or going an 
assent to the carrier's terms. 

But the assent may be expressed by words, or made manifest by 
acts; and it is in each case a question of evidence for the jury whether 
there was such an agreement. 

But a notice by the carrier, which only limits and defines his 
liability to a reasonable extent, without taking it away, as one which 
states what kind of goods he will carry, and what he will not; or to 
what amount only he will be liable for passengers' baggage, without 
special notice ; or what information he will require, if certain arti- 
cles, as jewels or gold, are carried; or what increased rates must be 
paid for such things, — any notice of this kind, if in itself reasona- 
ble and just, will bind the party receiving it. 

No party will be affected by any notice, — neither the carrier, 
nor a sender of goods, nor a passenger, — unless a knowledge of it 
can be brought home to him. In a case in Pennsylvania, where 
the notice was in the English language, and the passenger was a 
German who did not understand English, it was held that the car- 
rier must prove that the passenger had actual knowledge of the 
limitation in the notice. 



570 THE PROPERTY RIGHTS OF 

But the knowledge may be brought home to him by indirect 

evidence. As by showing that it was stated on a receipt given to 
him, or on a ticket sold him, or in a newspaper which he read, or 
even that it was a matter of usage, and generally known. This 
question is one of fact, which the jury will determine upon all the 
evidence, under the direction of the court. And if the notice is 
ambiguous, and may have two meanings, they will be directed to 
give it the meaning which is against the carrier, because it was his 
business to make it plain and certain. 

Any fraud towards the carrier, as a fraudulent disregard of a 
notice, or an effort to cast on him a responsibility he is not obliged 
to assume, or to make his liability seem to be greater than it really 
is, will extinguish the liability of the carrier so far as it is affected 
by such a fraud. 

If a carrier gives notice which he is authorized to give, the 
party receiving it is bound by it, and the carrier is under no obli- 
gation to make a special inquiry or investigation to see that the 
notice is complied with, but may assume that this is done. 

It should, however, be remarked that such notice affects ,the lia- 
bility of the common carrier only so far as it is peculiar to him ; 
that is, his liability for a loss which occurs without his agency or 
fault ; for he is just as liable as he would be without any notice for 
a loss or injury caused by his own negligence or default. 

Perhaps a common carrier might make a valid bargain which 
would protect him against every thing but his own wilful or fraudu- 
lent misconduct. But no bargain could be valid which would pro- 
tect him against this. 

SECTION IX. 

THE CARRIER'S LIABILITY FOR GOODS CARRIED BY 
PASSENGERS. 

A carrier of goods knows what goods, or rather what parcels 
and packages, he receives and is responsible for. A carrier of pas- 
sengers is responsible for the goods they carry with them as bag- 
gage ; w^hat that is, the carrier does not always know ; and he is 
responsible only to the extent of what might be fairly and naturally 
carried as baggage. This must always be a question of fact, to be 
settled as such by the jury, upon all the evidence, and under the 
direction of the court. But there can be no precise and definite 
standard. A traveller on a long journey needs more money and 
more baggage than on a short one ; one going to some places and 
for some purposes needs more than one going to other places or for 
other purposes. 



A CITIZEN OF THE UNITED STATES. 571 

In New York it was decided that baggage does not properly 
Include money in a trunk, or any articles usually carried about the 
person. And in another New York case, it was held that, where 
the baggage of a passenger consists of an ordinary travelling-trunk, 
in which there is a large sura of money, such money is not consid- 
ered as included under the term baggage, so as to render the carrier 
responsible for it. But generally a passenger may carry, as baggage, 
money not exceeding an amount ordinarily carried for travelling 
expenses. So in Massachusetts it was held that common carriers 
are responsible for money bona fide included in the baggage of a 
passenger, for travelling expenses and personal use, to an amount 
not exceeding what a prudent person might deem proper and neces- 
sary for the purpose. 

In Pennsylvania, carriers have been held responsible for ladies' 
trunks containing apparel and jewels. And in Illinois, a common 
carrier of passengers has been held liable for the loss of a pocket- 
pistol, and a pair of duelling-pistols, contained in the carpet-bag of 
a passenger, which was stolen out of the possession of the carrier. 
But in Tennessee, it has been held that " a silver watch, worth 
about thirty-five dollars, also medicines, handcuffs, locks, &c, 
worth about twenty dollars," were not included in the term bag- 
gage, and that the carrier was not responsible for their loss. In 
Ohio, it has been held that a gold watch, of the value of ninety-five 
dollars, was a part of the traveller's baggage, and his trunk a proper 
place to carry it in. In another New York case, it has been held 
that the owners of steamboats were liable as common carriers for 
the baggage of passengers ; but, to subject them to damages for loss 
thereof, it must be strictly baggage, — that is, such articles of neces- 
sity and personal convenience as are usually carried by travellers. 
And it was accordingly held, in that case, that the carrier was not 
liable for the loss of a trunk containing valuable merchandise and 
nothing else, although it did not appear that the plaintiff had any 
other trunk with him. But in a case in Pennsylvania, w T here the 
plaintiff was a carpenter moving to the State of Ohio, and his trunk 
contained carpenters' tools to the value of fifty-five dollars, which 
the jury found to be the reasonable tools of a carpenter, it was held 
that he was entitled to recover for them as baggage. 

There is some diversity, and perhaps some uncertainty, in the 
application of the rule ; but the rule itself is well settled, and a 
reasonable construction and application of it must always be made ; 
and, for this purpose, the passenger himself, and all the circum- 
stances of the case, must be considered. 

The pnrpose of the rule is to prevent the carrier from becoming 
liable by the fraud of the passenger, or by conduct which would 



572 THE PROPERTY RIGHTS OF 

have the effect of fraud ; for this would be the case if a passenger 
should carry merchandise by way of baggage, and thus make the 
carrier of passengers a carrier of goods without knowing it and 
without being paid for it. 

Generally, a common carrier of passengers, by stage, packet, 
steamer, or cars, carries the moderate and reasonable baggage of a 
passenger, without being paid specifically for it. But the law con- 
siders a payment for this as so far included in the payment of the 
fare as to form a sufficient ground for the carrier's liability to the 
extent above stated. 

The carrier is only liable for the goods or baggage delivered to 
him and placed under his care. Hence, if a sender of goods send 
his own servant with them, and intrust them to him and not to the 
carrier, the carrier is not responsible. So, if a passenger keeps his 
baggage, or any part of it, on his person, or in his own hands, or 
within his own sight and immediate control, instead of delivering 
it to the carrier or his servants, the carrier is not liable, as carrier, 
for any loss or injury which may happen to it; that is, not without 
actual default in the matter. Thus, in an action brought in New 
York to charge a railroad company, as common carriers, for the loss 
of an overcoat belonging to a passenger, it appeared that the coat 
was not delivered to the defendants, but that the passenger, having 
placed it on the seat of the car in which he sat, forgot to take it 
with him when he left, and it was afterwards stolen ; and it was 
held that the defendants were not liable. But if the baggage of a 
passenger is delivered to a common carrier, or his servant, he is lia- 
ble for it in the same way and to the same extent as he is for goods 
which he carries. 

In this country the rules of evidence permit the traveller to main- 
tain his action against the carrier by proving, by his own testimony, 
the contents of a lost trunk or box, and their value. And the testi- 
mony of the wife of the owner is similarly admissible. But it is 
always limited to such things — in quantity, quality, kind, and 
value — as might reasonably be supposed to be carried in such a 
trunk or valise. The rule, with this limitation, seems reasonable 
and safe, and is quite generally adopted. In Massachusetts it was 
distinctly denied by the Supreme Court, but was afterwards estab- 
lished by statute. 

The common carrier of goods or of passengers is liable to third 
parties for any injury done to them by the negligence or default of 
the carrier, or of his servants. And it would seem that he is liable 
even for the wilful wrong-doing of his servants, if it was committed 
while in his employ, and in the management of the conveyance 
under his control, although the wrong was done in direct opposition 



A CITIZEN OF THE UNITED STATES. 573 

to his express commands. So he is for injury to property by the 
wayside, caused by his fault. But the negligence of the party suffer- 
ing the injury, if it was material and contributed to the injury, is a 
good defence for the carrier; unless malice on the carrier's part can 
be shown. 

Where the party injured is in fault, the common carrier has still 
been held liable, if that fault was made possible and injurious 
through the fault of the carrier. 

If passengers are carried gratuitously, that is, without pay, the 
common carrier is still liable for injury caused by his negligence. 

Whether a railroad company is responsible for fire set to build- 
ings or property along the road, without negligence on its part, has 
been much considered in this country. In some of our States they 
are made so liable by statute provision. And this fact, together 
with the general principles of liability for injury done, would seem 
to lead to the conclusion that they are not liable, unless in fault, or 
unless made liable by statute. 

We annex to this chapter the Forms of receipts in the nature of 
a bill of lading, in common use by our steam packets and by express 
companies. Such a paper given and received would constitute a 
contract. 



(177.) 
STEAM PACKET COMPANY. 



Marks and Numbers. 



Received from 
the following articles, being marked and numbered 
as in the margin, in apparent good order, the con- 
tents and value unknown, 



lo be transported from to 

on one of the company's steamers, and to be 
delivered on their wharf in in like 

good order and condition, the dangers of the sea, 
of fire on board or on wharf, collision, and all 
other accidents excepted. 

Dated at ~) 

186 ) For the company. 



574 THE PROPERTY RIGHTS OF 



(178.) 
Duplicate. 



EXPRESS COMPANY. 



FAST FREIGHT LINE. 

18 

Received from 
the following packages, in apparent good 
order, contents and value unknown: — 



Advanced 


Charges, $ 




RATES. 


D'ble 1st class, cents per 100 lbs. 


1st class, 


cents per 100 lbs. 


2d class, 


cents per 100 lbs. 


3d class, 


cents per 100 lbs. 


4th class, 


cents per 100 lbs. 



AS PER CLASSIFICATION ON BACK. 



Marked and numbered as in the 
margin, to be forwarded by railroad 
and delivered at upon 

payment of freight therefor, as noted 
in the margin, subject to the condi- 
tions and rules on the back hereof, 
and those of the several railroads over 
which the property is transported, 
which constitute a part of this con- 
tract. 

Agent. 



On the back of this receipt is a minute and very full classifica- 
tion of all articles likely to be offered for transportation, followed 
by the 

conditions and rules. 

The destination, name of the consignee, and weight of all articles of 
freight must be plainly and distinctly marked, or no responsibility will be 
taken for their miscarriage or loss; and when designed to be forwarded, 
after transportation on the route, a written order must be given, with the 
particular line of conveyance marked on the goods, if any such be preferred 
or desired. 

The companies will not hold themselves liable for the safe carriage or 
custody of any articles of freight, unless receipted for by an authorized 
agent; and no agent of the line is authorized to receive, or agree to trans- 
port, any freight which is not thus receipted for. 

No responsibility will be admitted, under any circumstances, to a greater 
amount upon any single article of freight than $200, unless upon notice 
given of such amount, and a special agreement therefor. Specie, drafts, 
bank-bills, and other articles of great intrinsic or representative value, will 



A CITIZEN OF THE UNITED STATES. 575 

only be taken upon a representation of their value, and by a special agree- 
ment assented to by the superintendent of the receiving road. 

The companies will not hold themselves liable at all for injuries to any 
articles of freight during the course of transportation, arising from the 
weather, or accidental delays, or natural tendency to decay. Nor will their 
guaranty of special despatch cover cases of unavoidable or extraordinary 
casualties or storms, or delays occasioned by low water and ice; and may 
be stored at the risk and expense of the owner. Nor will they hold them- 
selves liable, as common carriers, for such articles, after their arrival at 
their place of destination at the company's warehouses or depots. 

Carriages and sleighs, eggs, furniture, looking-glasses, glass and 
crockery ware, machinery, mineral acids, piano-fortes, stoves and castings, 
sweet potatoes, wrought marble, all liquids put up in glass or earthen- 
ware, fruit, and live animals, will only be taken at the owner's risk of 
fracture or injury during the course of transportation, loading and unload- 
ing, unless specially agreed to the contrary. 

Gunpowder, friction matches, and like combustibles will not be re- 
ceived on any terms; and all persons procuring the reception of such 
freight, by fraud or concealment, will be held responsible for any damage 
which may arise from it while in the custody of the company. 

It is further stipulated and agreed, that goods shipped to points west c?f 
shall be subject to a change in classification, and cor- 
responding change of rates beyond those points. 

Cases or packages of boots and shoes, and of -other articles liable to 
peculation or fraudulent abstraction, must be strapped with iron or wood, 
or otherwise securely protected, or the companies will not be liable for 
diminution of the original contents; and the companies will hold the 
freighter, in all cases, to bear the loss arising from improper packing. 

It is also agreed between the parties that the said companies, and the 
railroads and steamboats with which they connect, shall not be held 
accountable for any deficiency in packages, if receipted for to them in 
good order. 

All articles of freight arriving at their places of destination must be 
taken away within twenty-four hours after being unladen from the cars, 
each company reserving the right of charging storage on the same, or 
placing the same in store at the risk and expense of the owner, if they see 
fit, after lapse of that time. 



576 THE PROPERTY RIGHTS OF 



CHAPTER XXIII. 
FIKE IlSTSUKAIsrCE. 

SECTION I. 
THE USUAL, SUBJECT AND FORM OF THIS INSURANCE. 

This kind of insurance is sometimes made to indemnify against 
the loss by fire of ships in port ; more often of warehouses, and 
mercantile property stored in them ; or of personal property in 
stores or factories, in dwelling-houses or barns, as merchandise, 
furniture, books, and plate, or pictures, or live-stock. But the 
most common application of this mode of insurance is to dwelling- 
houses. 

It may he effected by any individual who is capable of making 
a legal contract. In fact, however, it is always, or nearly always, 
in this country, and we suppose elsewhere, made by companies. 

There are stock companies, in which certain persons own the 
capital and take all the profits by way of dividends; and mutual 
companies, in which every one who is insured becomes thereby a 
member, and the net profits, or a certain proportion of them, are 
divided among all the members in such manner as the charter or 
by-laws of the company may direct. Sometimes both kinds are 
united, in which case there is a capital stock provided, which is a 
permanent guaranty fund over and above the premiums received, 
and a certain part or proportion of the net profits is paid by way 
of dividend upon this fund, and the residue divided among the 
insured. 

Of late years, the number of mutual lire-insurance companies 
has greatly increased in this country, and much the largest amount 
of insurance against fire is effected by them. The principal reason 
for this is, undoubtedly, their greater cheapness, the premiums 
required by them being, in general, much less than in the stock 
offices. For example, if the insurance is effected for seven years, 
which is a common period, an amount or percentage is charged, 
about the same as that charged by the stock companies, or a little 
more. Only a small part of this is taken in cash ; for the rest a 
premium note or bond is given, promising to pay whatever part of 
the amount may be needed for losses which shall occur during the 
period for which the note is given. More than this, therefore, tho 
insured cannot be bound to pay, and it frequently happens that no 



A CITIZEN OF TEE UNITED STATES. 57 1 

assessment whatever is demanded ; and sometimes, where the 
company is well established, and does a large business upon sound 
principles, a part of the money paid by him is refunded when the 
insurance expires, or credited to him on the renewal of the policy, if 
such be his wish. 

The disadvantage of these mutual companies is, that the pre- 
miums paid and premium notes constitute the whole capital or 
fund out of which losses are to be paid for. To make this more 
secure, it is provided by the charter of some companies that they 
shall have a lien on the land itself on which any insured building 
stands, to the amount of the premium. But while this adds very 
much to the trustworthiness of the premium notes, and so to the 
availability of the capital, it is, with some persons, an objection 
that their land is thus subjected to a lien or incumbrance. 

There is another point of difference which recommends the stock 
company rather than the mutual company ; it is, that the stock 
company will generally insure more nearly the full value of the 
property insured, while the mutual companies are generally re- 
strained by their charters from insuring more than a certain pro- 
portion, namely, from one-half to three-fourths, of the assessed value 
of the property. It would follow, therefore, that one insured by a 
mutual company cannot be fully indemnified against loss by fire. 

USAGE. 

The method and operation of fire insurance have become quite 

uniform throughout this country; and any company may appeal to 
the usage of other companies to answer questions which have arisen 
under its own policy ; only, however, within certain rules, and under 
some well-defined restrictions. 

In the first place, usage may be resorted to for the purpose of 
explaining that which needs explanation, but never to contradict 
that which is clearly expressed in the contract. And no usage can 
be admitted even to explain a contract, unless the usage be so well 
established, and so well known, that it may reasonably be supposed 
that the parties entered into the contract with reference to it. And 
not only the terms of the contract must be duly regarded, but those 
of the charter or act of incorporation. 

In regard to the execution of a fire policy, and what is neces- 
sary to constitute such execution, we say that delivery is not strictly 
necessary, and a signed memorandum may be sufficient, or, indeed, an 
oral bargain only, and that this insurance may be effected by cor- 
respondence, and that the contract is completed when there is a 
proposition and assent. 

37 



578 THE PROPERTY RIGHTS OF 

If proposals are made on either side by letter, and accepted by 

the other party, also by. letter, this is a valid contract of insurance 
as soon as the party accepting has mailed his letter to that effect, 
if he have not previously received notice of a withdrawal of the 
proposals. 

It has been held in an action on a fire policy, that a memoran- 
dum made on the application-book of the company by the pres- 
ident, and signed by him, was not binding, where the party to be 
insured wished the policy to be delayed until a different adjustment 
of the terms could be settled, and, after some delay, was notified by 
the company to call and settle the business or the company would 
not be bound, and he did not call. The court held that there was 
here no consummated agreement. A subsequent adoption or rati- 
fication of a policy made by an agent is equivalent, either in a fire 
or marine policy, to the making originally of the contract. 



SECTION II. 
THE CONSTRUCTION OF POLICIES AGAINST FIRE. 

It is sufficient if the words of the policy describe the persons, the 

location, and the property, with so much distinctness that the court 
and jury have no difficulty in determining their identity with a cer- 
tainty which prevents any real and substantial doubt. 

In the construction of this as of other contracts, the intention 
of the parties is a very important and influential guide; but it must 
be the intention as expressed ; for otherwise, a contract which was 
not made would be substituted for that which was made ; and evi- 
dence from without the contract would be permitted to vary and 
to contradict it. Thus, where stock in trade, household furniture, 
linen, wearing-apparel, and plate were insured in a policy, the court 
held that the term "linen" must be confined to "household linen," 
and would not include linen drapery goods purchased on speculation. 
But in a case where the policy required that the houses, buildings, or 
other places where goods are deposited and kept, shall be truly and 
accurately described, and the place was described as the dwelling- 
house of the insured, whereas he occupied only one room in it as a 
lodger, this description was held sufficient. 

It was held in another case that the insurance by an innkeeper 
against fire of his " interest in the inn and offices " does not cover 
the loss of profits during the repair of the damaged premises. And 
in another, the words " stock in trade," when used in a policy of in- 
surance in reference to the business of a mechanic, as a baker, were 



A CITIZEN OF THE UNITED STATES. 579 

held to include not only the materials used by him, but the tools, 
fixtures, and implements necessary for the carrying on of his busi- 
ness ; and the words in question were held to have a broader appli- 
cation to the business of mechanics than to that of merchants. 

A policy upon wearing-apparel, household furniture, and the 
stock of a grocery, covers linen sheets and shirts actually laid in for 
family use, and such as were laid in for sale or traffic in the usual 
way in the store ; but not such as, being smuggled, were concealed 
and intended for secret sale. 

So, if the designation of the insured be common to many persons, 
the intention of the parties must decide for whom it is made. What- 
ever is written on any part of the sheet containing the policy, or 
even on a separate paper, if referred to or signed by the parties as a 
part of the policy, is thereby made a part of it. But things said by 
either party while making their bargain, or written on other paper, 
and not so referred to or signed, form no part of it. 

Alterations may be made at any time by consent. But a ma- 
terial alteration by either party, without the consent of' the other, 
renders the contract void ; although it was made honestly, in the 
hope or belief of its being assented to. A court of equity will gen- 
erally correct a material mistake of fact. 

A policy may be assigned, unless this is prohibited by the 
policy itself, and the assignee may sue in the name of the assignor. 
If the loss is made by the policy payable " to order" or " to bearer,'' 
it will then be negotiable by indorsement or delivery ; but it is not 
certain that the transferee can even then sue in his own name. In 
New York and some other States, not only these assignees, but 
ther assignees of debts or contracts, may sue in their own names. 

If the insured transfers the property, unaccompanied by a trans- 
fer of the policy with consent of the insurer, this discharges the 
policy, unless it was expressly made for the benefit of whoever 
should be owner at the time of the loss. There is usually a clause 
to the effect that the policy is void if assigned without the consent 
of the insurers. But this does not apply to an assignment by force 
of law, as in a case of insolvency, or in a case of death. And after a 
loss has occurred, the claim against the insurers is always assignable 
like any other debt. And a seller who remains in possession of the 
property as trustee for the purchaser, or a mortgagor retaining pos- 
session, may retain the policy, and preserve his rights. 

It is a general rule with our mutual insurance companies that 
every one who is insured becomes a member of the company. And 
it follows, necessarily, that every insured party is bound by all the 
laws and rules of the company, as by laws and rules of his own 
making. 



580 THE PROPERTY RIGHTS OF 



APPLICATIONS. 

The mutual fire-insurance companies, by a law or rule which is 
perhaps universal, require that an application shall be made in writ- 
ing ; and this written application is after a peculiar form, which is 
prescribed by the rules. It always contains certain definite state- 
ments, which relate to those matters which affect the risk of fire 
importantly. In each form of application sundry questions are put, 
which are quite numerous and specific, and are those which experi- 
ence has suggested as best calculated to elicit all the information 
needed by the insurers, for the purpose of estimating accurately the 
value of the risk they undertake. Specific answers must be given to 
all these questions. And this application, with all these statements, 
questions, and answers, is expressly referred to in the policy, and 
made a part of the contract. 

It is common to state in the printed part of the formal applica- 
tion that it is made on such and such conditions ; and these usually 
follow those statements which are deemed the most material in 
estimating the risk. These would be considered as express condi- 
tions, and therefore the substantial truth of all of them is a condi- 
tion precedent to any right of indemnity in the insured party. By 
the legal phrase condition precedent is meant a condition which 
must be fully complied with before the contract can take effect. 
Hence, if any of these statements are false, the policy will be 
void. 

Sometimes there is no distinct application in writing, but the 
policy itself states the facts relied upon. For this purpose it con- 
tains many blanks, which are filled up according to the circum- 
stances of each case. It may happen that what is written in these 
places may be inconsistent with what is printed ; and then it is a 
general rule that what is written prevails, as that is more immedi- 
ately and specifically the act of the parties, and may be supposed to 
express their precise purpose better than the printed phrases which 
were prepared without especial reference to any particular case. 
But this rule would not be applied where it would obviously 
operate injustice. 

Policies of fire insurance, especially of mutual companies, often 
contain a scale of premiums, calculated upon different classes of 
buildings, of stocks in trade, or other property, in conformity with 
what is thought to be the greater or less risk of fire in each case. 
This is a matter of special importance ; and if a statement were 
made by an applicant which put his building or property into 
a class of which the risk and premium were less than those for the 



A CITIZEN OF THE UNITED STATES. 581 

class to which the building or property actually belonged, and in 
that way an insurance was effected at such less premium, the 
policy would undoubtedly be void, even if the false statement were 
made innocently. 

When certain trades or occupations, or certain uses of buildings, 
or kinds and classes of property, are enumerated as "hazardous," or 
otherwise specified as peculiarly exposed to risk, the rule, The 
expression of one thing excludes what is not expressed, is applied, 
and sometimes with severity. This is better illustrated by marine 
insurance. Thus, in a case in New York, precisely in point, dried 
fish were enumerated in the memorandum clause as free from 
average, and " all other articles perishable in their own nature." 
It was held that the naming of one description of fish implied that 
other fish were not intended ; and that the subsequent words, "all 
other articles perishable in their own nature," were not applicable, 
and did not repel this implication. The same rule would be ap- 
plied, for the same reason and in the same way, to cases of fire 
insurance. 

If the printed conditions represent one class of buildings, or 
goods, or property, as more hazardous than another, it would not be 
competent for the insured, whose property was of that kind, to prove 
by other testimony that it was not more hazardous in fact. More- 
over, a description of the property insured, as it is a description 
for a contract on time, is held to amount to an agreement that the 
property shall continue within the class where it is put, or at least 
shall not enter into another that is declared to be more hazardous, 
during the operation of the policy. There must, however, be a 
rational, and perhaps a liberal, construction of this rule. Thus, it 
does not apply where a single article, or one or two, are kept in 
a store as a part of the stock of goods, although that article, as 
cotton in bales, is among those enumerated as hazardous. So if 
the " storing of spirituous liquors " is prohibited, the keeping of wine 
or brandy in a private house for consumption, or even for sale bv 
retail to boarders, would not discharge the insurers. 

In New York it was held that where oils and turpentine, which 
were classed among hazardous or extra-hazardous articles, were 
introduced for the purpose of repairing and painting the dwelling 
insured, and the dwelling was burned while being so repaired, the 
insurers were liable. But if the building is generally appropriated 
to a more hazardous occupation than the proposals or the policy 
indicate, or if the jury find that the introduction of these goods 
materially increased the actual risk, evidence would be received 
as to the intention of the parties to the contract ; and the true 
meaning of the contract and the intent of the parties would be 



582 THE PROPERTY RIGHTS OF 



considered. Thus, where the "storing" of certain goods was pro- 
hibited, as " hazardous," it was held that having a pipe or two 
of such articles in the cellar, from which smaller vessels in the store 
were replenished, did not come within the meaning of the word 
"storing" in the policy, any more than would the keeping of such 
articles for home consumption in a dwelling-house insured by a sim- 
ilar policy. So a description of a house as "at present occupied as 
a dwelling-house, but to be hereafter occupied as a tavern, and 
privileged as such," is only permission that it should be a tavern, 
and creates no obligation to occupy and keep it as a tavern on the 
part of the insured. But if the language is, " to be occupied as so 
or so, but not " in some other certain way, this restriction is a part 
of the bargain ; and, if the building is occupied in the. way prohibited, 
the insurers are discharged. 

So if the premises are described as a " private residence," the 
insurance is not avoided by the fact that the occupants moved out of 
the house, leaving it vacant, and not the "residence" of any one, 
unless the jury find that the risk was thereby materially increased. 
But where the property was represented as a " tavern barn," and the 
insured permitted its occupation as a livery-stable, the policy was 
held to be discharged, although the keeper of the livery-stable was 
removable at the pleasure of the insured. Where a building in- 
sured by a company was represented, at the time of effecting the 
insurance, as connected with another building on one side only, and 
before the loss happened it became connected on two sides, the 
policy was held not to be avoided unless the risk thereby became 
greater. 

The general subject of alterations of property under insurance 
against fire is not without difficulty. On the whole, however, mere 
alterations, although expensive and important, do not necessarily 
and of themselves avoid the insurance or discharge the insurers; 
but they have this effect if they are found by the jury to increase 
the risk materially, or if they are specifically prohibited in the 
policy. 

Still other questions may arise where material alterations are 
made, all of which are not easily disposed of. The following are 
instances: Suppose one gets his dwelling-house insured for seven 
years, truly describing it as having a shingled roof. After two or 
three years he determines to take off the shingles, but says nothing 
to the insurers about it. If he now puts on slates, or a metallic 
covering which does not require soldering, he does not increase the 
risk; nor is the work of putting on the new covering hazardous, and 
we see no grounds for its having any effect on the policy. But 
suppose the new metallic covering is secured by soldering. This is 



A CITIZEN OF THE UNITED STATES. 583 

certainly a hazardous operation. And if the building takes fire 
in consequence of this operation, the insurers are certainly dis- 
charged. 

If the operation is conducted safely through, and the work is 
entirely finished, we consider it clear that this greater hazard for a 
time has no effect whatever on the policy after that time, and after 
all the greater hazard has expired. But let us suppose that while 
this operation is going forward, and the house is thereby certainly 
exposed to an increase of risk, the house is set on fire by an incen- 
diary, — without the slightest reference to this alteration, — and 
burns down. It is not, perhaps, settled, either by authority or prac- 
tice, whether the insurers are or are not discharged. I am, how- 
ever, of opinion that the principles of insurance would lead to the 
conclusion that, if the house be burned from a perfectly independ- 
ent cause, during an increase of risk incurred for good cause and 
in good faith, the insurers are not thereby discharged. It is, how- 
ever, certain that it is always prudent to obtain the consent of the 
insurers to any proposed alteration. If such consent be asked, and 
refused, we do not see that the insurers stand on any better footing, 
or the insured on any worse one; and if the alterations are made 
and a loss occurs, we should say that the insurers would not, gen- 
erally at least, be discharged because of their refusal, unless they 
would have been discharged if the alteration had been made with- 
out their knowledge. For if they had a right to object or refuse, 
it could only be because the contract in effect prohibited this altera- 
tion ; and then their refusal was not wanted for their defence. And 
if they have no right to refuse, they can acquire no rights by the 
refusal. 

If the alteration be of a permanent character, and causes a mate- 
rial increase of the danger of fire, then it is a substantial breach of 
contract ; and we should hold that the insurers were discharged as 
soon as the alteration was made, and indeed as soon as the making 
of it, or preparations for it, as scaffolding or carpenter's work, mate- 
rially increased the risk. And they are discharged equally whether 
the fire be caused by theyalteration, or by the work done, or by some 
wholly independent matter. 

The insured may make reasonable repairs without especial leave, 
and the insurers are liable, although the fire take place while the 
repairs are going on ; and even if it be caused by the repairs. 

It may be added, that our fire policies now in use frequently give 
the insured the right of keeping the property in repair. The failure 
of the insured to repair a defect in the building, arising after the 
contract is made, does not prevent the insured from recovering un- 
less he w r as guilty of gross negligence. 



584 THE PROPERTY RIGHTS Or 

SECTION III. 
THE INTEREST OF THE INSURED. 

Any legal interest is sufficient. And if it be equitable in the 
sense that a court of equity will recognize and protect it, that is 
sufficient ; but a merely moral or expectant interest is not enough. 
So, one who has made only an oral bargain with another to pur- 
chase the other's house, cannot insure it ; but if there be a valid 
contract in law, or if by writing or by part performance it is en- 
forceable in a court of equity, the purchaser may insure. So, if a 
debtor assign his property to pay his debts, he has an insurable 
interest in it until the debts are paid, or until the property be 
sold. 

A partner may have an insurable interest in a building pur- 
chased with partnership funds, although it stands upon land owned 
by the other partner. A mortgagor may insure the whole value of 
his property, even after the possession has passed to the mortgagee, 
if the equity of redemption be not wholly gone. So he may if his 
equity of redemption is seized on execution, or even sold, so long 
as he may still redeem. And in case of loss he recovers the whole 
value of the building, if he be insured on it to that amount. 

A mortgagor and a mortgagee may both insure the same 
property, and neither need specify his interest, but simply call it his 
property. The mortgagee has an interest only equal to his debt, 
and founded upon it; and if the debt be paid, the interest ceases, 
and the policy is discharged ; and he can recover no more than the 
amount of his debt. 

It has been held that if a mortgagor is bound by his contract 
with the mortgagee to keep the premises insured for the benefit of 
the mortgagee, and does keep them insured, but in his own name, 
the mortgagee has an equitable interest in or lien upon the proceeds 
of the policy. 

One who holds property only in right of his wife may insure 
the property, even if his wife be only a joiwt tenant. And a tenant 
for years, or from year to year, may insure his interest, but would 
recover only the value of his interest, and not the value of the 
whole property. 

We have said that, generally, any one having any legal inter- 
est in property may insure it as his own. But there is one impor- 
tant exception to or modification of this rule. By the charters of 
many of our mutual insurance companies the company has a lien, to 
the amount of the premium note, on all property insured. It is 
obvious, therefore, that no such description can be given, or no such 



A CITIZEN OF TEE UNITED STATES. 585 



language used, as would induce the company to suppose they had a- 
lien when they could not have one, or would in any way deceive 
them as to the validity or value of their lien. In all such cases, 
all incumbrances must be stated, and the title or interest of the 
insured fully stated in all those particulars in which it affects the 
lien. 

A trustee, agent, or consignee may insure the property in his 
hands against fire. Generally, the consignee is not bound to insure 
against fire, but may, at his discretion. He may insure, expressly, 
his own interest in them for advances, or the owner's interest. 
It has been held that a consignee may, by virtue of his implied 
interest and authority, insure, in his own name, goods in his posses- 
sion against fire, to their full value, and recover for the benefit of 
the owner. But if the interest be not expressed, the policy will be 
construed as not covering the interest of the owners, if, upon a 
fair construction of the words and facts, it seems to have been the 
intention of the parties only to secure the consignee's interest. 
And an insurance against fire upon merchandise in a warehouse, 
" for account of whom it may concern," protects only such inter- 
ests as were intended to be insured at the time of effecting the 
insurance. 

It is now common for a commission-merchant to cover in one 
policy, in his own name, all the goods of the various owners wlv 
have consigned goods to him. It has been held that the words 
"goods held on commission," in fire policies, have an effect equiv- 
alent to the words " for whom it may concern," in marine policies, 
and that they would cover all the goods held on commission which 
the insured intended to insure. 

A person having a lien on a building under a State law has 
an insurable interest in the building. 

A consignee of goods, sent to him, but not received, may in- 
sure his own interest in them. So, any bailee (which means any 
person to whom property has been delivered for any purpose) who 
has a legal interest in the chattels which he holds, although this be 
temporary and qualified, may insure the goods against fire. Thus a 
common carrier by land, who has a lien on the goods, and is answer- 
able for them if lost by fire (unless it be caused by the act of God 
or the public enemy), may insure the goods to their full value 
against fire. 

The insurers must know whom they insure ; for they may 
have a choice of persons, and it is important to them to know 
whether they are to depend on the care and honesty of this man or 
of that man. The insured must so describe the owner as not to 
deceive them on this point, and so he must the kind of ownership 



&Sb* THE PROPERTY RIGHTS OF 

Thus, if he aver an entire interest in himself, he cannot support this 
by showing a joint interest with another. 

So, too, there must be actual authority to make the insurance. 
This may be express, or implied in some cases, as it seems to be 
implied with the consignee, or the carrier, and perhaps, generally, 
with any one who has an actual possession of, interest in, and lien 
on, the property. But a tenant in common does not derive from 
his cotenancy authority to insure for his cotenant; nor could a mas- 
ter of a ship, or a ship's-husband, merely as such, insure the owner's 
interest against fire, without authority to do so. 



SECTION IV 
DOUBLE INSURANCE. 

By this the party originally insured becomes again insured. 

If, by a double insurance, the insured could protect himself over and 
over again, he might recover many indemnities for one loss. This 
cannot be permitted ; not only because it is opposed to the first prin- 
ciples of insurance, but because it would tempt to fraud, and make 
it very easy. 

In this country, fire policies usually contain express and exact 
provisions on this subject, They vary somewhat ; but, generally, 
they require that any other insurance must be stated by the insured, 
and indorsed on the policy ; and it is a frequent condition that each 
office shall in that case pay only a ratable proportion of a loss ; 
and it is often added that, if such other insurance be not so stated 
and indorsed, the insured shall not recover on the policy. And it 
has been held that such a condition applies to a subsequent as well 
as to a prior insurance, or to an insurance of any part of the prop- 
erty covered by the other policy. Nor will a court of equity relieve, 
if sufficient notice and indorsement have not been made. But it 
has been held that a valid notice might be given to an agent of the 
company, who was authorized to receive applications and survey 
property proposed for insurance. 

In some instances, the charter of the company provides 
that any policy made by it shall be avoided by any double in- 
surance of which notice is not given, and to which the consent of 
the company is not obtained, and expressed by their indorsement 
in the policy. But this would not apply to a non-notice by an 
insured of an insurance effected by the seller on the house which 
the insured had bought, if this policy were not assigned to the 
buyer. 



A CITIZEN OF THE UNITED STATES. 587 

SECTION V. 
WARRANTY AND REPRESENTATION. 

A warranty is a part of the contract; it must be distinctly 
expressed, and written either in or on the policy, or on a paper 
attached to the policy, or, as has been held, on a separate paper dis- 
tinctly referred to and described as a part of the policy. Then it 
operates as a condition precedent, that is, as a condition of the 
policy, which, if it be not performed, the policy never takes effect ; 
therefore, if it be not performed, there is no valid contract ; nor 
can the non-performance be helped by evidence that the thing 
warranted was less material than was supposed, or, indeed, not 
material at all. 

It may be a warranty of the present time, or, as it is called, 
affirmative ; or of the future, and then it is promissory. And it may 
be, although of the present and affirmative, a continuing warranty, 
rendering the policy liable to avoidance by a non-continuance of 
the thing which is warranted to exist. Whether it is thus con- 
tinuing or not must evidently be determined by the nature of the 
thing warranted. A warranty that the roof of a house is slated, or 
that there are only so many fire-places or stoves, would, generally at 
least, be regarded as continuing ; but a warranty that the building 
was five hundred feet from any other building would not cause the 
avoidance of the policy if a neighbor should afterwards put up a 
house within one hundred feet, without any act or privity of the 
insured. 

We have seen that statements made on a separate" paper may 
be so referred to as to make them a part of the policy. And it is 
usual to refer in this way to the written application of the insured, 
and to all the written statements, descriptions, and answers to ques- 
tions, which he makes for the purpose of obtaining insurance. But 
a fair and rational, and, in some cases, a liberal construction, will be 
given to such statements. An indorsement made upon the policy 
before it is executed and delivered would take effect as a part of it. 

It is quite certain that the word "warranty" need not be used, 
if the language is such as to import unequivocally the same meaning. 

A statement may be introduced into the policy itself, and be con- 
strued not as a warranty, but merely as a license or permission 
of the insurers that premises may be occupied in a certain way, or 
some other fact occur without prejudice to the insurance. 

A representation, in the law of insurance, differs from a war- 
ranty, in that it is not a part of the contract. If made after the 
signing of the policy or the completion of the contract, it cannot, of 



588 THE PROPERTY RIGHTS OF 

course, affect it. If made before the contract, and with a view to 
effecting insurance, it is no part of the contract; but if it be fraudu- 
lent, it makes the contract void. And if it be false, and known to 
be false by him who makes it, it is his fraud. To have this effect, 
however, it must be material ; and there is no better test or standard 
for this than the question, whether the contract would have been 
made, and in its present form or on its actual terms, if this state- 
ment had not been made and believed by the insurers. If the 
answer is, that the contract would not have been made if this 
statement had not been made, it is material ; otherwise, not. The 
general rule is, that the statements in the application on a separate 
sheet have the effect only of representations, and do not avoid the 
policy unless void in a material point, or unless the policy makes 
them specially a part of itself, and gives them the effect of war- 
ranties. A representation may be more certainly and precisely 
proved if in writing ; but it will have its whole force and effect if 
only oral. 

In some instances, by the terms of the policies, any misrepresen- 
tations or concealments avoid the policy. And it is held that the 
parties have a right to make such a bargain, and that it is binding 
upon them ; and the effect of it would seem to be to give to rep- 
resentations the force and influence of warranties. 

If a warranty is broken, however innocently, it avoids all poli- 
cies, whether material or not; but a misrepresentation does not 
avoid the policy, unless it is material and fraudulent. And this 
difference between a warranty and a representation is very im- 
portant. 

Concealment is the converse of misrepresentation. The insured 
is bound to state all that he knows himself, and all that it imports 
the insurer to know, for the purpose of estimating accurately the 
risk he assumes. A suppression of the truth has the same effect as 
an expression of what is false. And the rule as to materiality and 
as to a substantial compliance is the same. 

Even the rumor of an attempt to set fire to a neighboring build- 
ing should be communicated; because the insurer should be in- 
formed of any unusual fact, or any circumstance relating to the 
building materially enhancing the risk. 

Insurers must be understood as knowing all those matters of 
common information, that are as much within their reach as in that 
of the insured ; and these need not be especially stated. But any 
special circumstance, as a great number of fires in the neighbor- 
hood, and the probability or belief that incendiaries were at work, 
should certainly be communicated ; and silence on such a point — 
especially if the place of business of the insurers was at a consid- 



A CITIZEN OF THE UNITED STATES. 589 

erable distance from the premises — would operate as a fraud, and 
avoid the policy. And any questions asked must be answered, and 
all answers must be as full and precise as the question requires. If 
there were a provision in the policy that a certain fact, if existing, 
must be stated, silence in reference to it would avoid the policy, 
however immaterial the fact. For concealment in an answer to a 
specific question can seldom or never be justified by showing that 
it was not material. Thus, in general, nothing need be said about 
title ; but if it be inquired about, full and accurate answers must 
be made. 

Where the insurance company has, by the terms of the policy, a 
lien upon or interest in the premises insured to secure the premium 
note, here it is obvious that any concealment of incumbrance or 
defect of title would operate as a fraud, and defeat the policy. But 
in all such cases it is probable that specific questions are put respect- 
ing t*he estate and title of the insured. 

It is often required that all buildings standing within a certain 
distance of the property insured shall be stated ; but this might not 
always be considered as applicable to personal and movable prop- 
erty. Still, an insurance of chattels, described as in a certain place 
or building, would be held to amount to a warranty that they should 
remain there ; or rather it would not cover them if removed into 
another place or building, unless, by some appropriate phraseology, 
the parties expressed their intention that the insured was to be pro- 
tected as to this property wherever it might be situated. It is not 
uncommon to insure goods that are in course of transit, against fire; 
but then it is usual to name the places from which and to which the 
goods are passing. 



SECTION VI. 
THE RISK INCURRED BY THE INSURERS. 

At the time of the insurance the property must be in existence, 

and not on fire, and not at that moment exposed to a dangerous fire 
in the immediate neighborhood ; because the insurance assumes that 
no unusual risk exists at that time. 

The risk taken is that of fire. And therefore the insurers are 
not chargeable if the property be destroyed or injured by the indi- 
rect effect of excessive heat ; or by any effect which stops short of 
ignition or combustion, when there is no fire. Where, however, 
an extraordinary fire occurs, the insurers are clearly liable for the 
effects of it, as where furniture or pictures are injured by the heat, 
although they do not actually ignite. 



090 THE PROPERTY RIGHTS OF 

They are liable for the injury from water used to extinguish 

the fire; and for injury to or loss of goods caused by their removal 
from immediate danger of fire ; but not if removed from a mere 
apprehension from a distant fire, even if it be reasonable ; and not if 
the loss or injury might have been avoided by even so much care as 
is usually given in times of such excitement and confusion. 

In some instances the policies require that the insured should 
use all possible diligence to preserve their goods ; and such a clause 
would strengthen the claim for injury caused by an endeavor to 
save them by removal. So the insurers are liable for injury or loss 
sustained by the blowing up of buildings to arrest the progress of 
a fire. 

Lightning is not fire ; and if property be destroyed by lightning, 
the insurers are not liable, unless there was also ignition, or unless 
the policy expressly insures against lightning. 

Loss by an explosion of gunpowder is a loss by fire ; a loSs by 
an explosion caused by steam is not a loss by fire. 

Whether, when the negligence of the insured or his servants is 
to be considered as the sole or direct cause of the fire or loss, the 
insurers can be held, has been somewhat considered. And as this 
is the most common and universal danger, and the very one which 
induces most persons to insure, there has been some disposition to 
say that no measure or kind of mere negligence can operate as a 
defence. And in effect this is almost the law. But if the loss be 
caused by negligence of the insured himself, of so extreme and gross 
a character that it is hardly possible to avoid the conclusion of 
fraud, the defence might be a good one, although there were no 
direct proof of fraud. That the fire was caused by the insanity of 
the insured should be no defence. 



SECTION VII. 
VALUATION. 

Valuation does not often enter into a fire policy, and especially 

not in a policy made by any of those mutual companies, who now do 
a very large part of the insurance of this country. And seldom is 
a building valued when insured by a stock company. If a loss 
happens, whether it be total or partial, the insurers are bound to pay 
only so much of the sum insured as will indemnify the assured. 
But, as care is always taken — and sometimes required by law — 
not to insure upon any house* its. whole value, it seldom happens, 
and, if the proper previous precautions are taken, should never hap- 
pen, that any question of value arises in a case of a total destruction 
of a building by fire. 



A CITIZEN OF THE UNITED STATES. 591 

But mutual companies are usually forbidden by their charter to 
insure more than a certain proportion of the value of a building ; 
and this requires a valuation in the policy, which is conclusive, for 
some purposes, against both parties. Of course, the insurers can 
never be held to pay more than the sum insured. And if their char- 
ter or by-laws permit a company to insure only a certain proportion 
of the value, as three-fourths, — on the one hand, if the company 
insure more than that proportion, as $3,500 on property valued at 
$4,000, they are held to pay only $3,000, and the assured cannot 
show that the building was really worth more than $4,000 ; and, on 
the other hand, the valuation, if not fraudulent, is conclusive against 
the insurers if the building is destroyed ; and therefore they cannot 
show, in defence, that the building w r as worth less. 

I know nothing to prevent the parties from making a valued 
policy, if they see fit to do so, although this has been questioned. 
It is not uncommon for companies who insure chattels — as plate, 
pictures, statuary, books, or the like — to agree on what shall be 
the value in case of loss. 

Sometimes the policy reserves to the insurers the right to have 
the valuation made anew by evidence, in case of loss. Then if a 
jury find a less valuation, the insurers pay the same proportion of 
the new value which they had insured of the former valuation. 

The value which the insurers on goods must pay is their value 
at the time of the loss. And it has been held that a fair sale at 
auction, of what is left in good order, with due precaution, wall be 
taken to settle that value after the fire, provided the insurers have 
reasonable notice or knowledge that the auction is to take place. 

The valuation determines the amount which the insurers must 
pay only in case of total destruction. If the building is injured by 
fire, but not destroyed, the insurers may either repair it, or pay the 
cost of repairing it. 



section vni. 

ALIENATION. 

Policies against fire are personal contracts between the insured 

and the insurers, and do not pass to any other party, without the 
express consent of the insurers. 

It is essential to the validity and efficacy of this contract that 
the insured have an interest in the property when he is insured, and 
also when the loss takes place ; for otherwise it is not his loss, and 
he can have no claim for indemnity. If, therefore, he alienates the 
whole of his interest in the property before the loss, he has no claim ■ 



592 THE PROPERTY RIGHTS OF 

and if he alienates a part, retaining a partial interest, he has cnly a 
partial and proportionate claim. 

After a loss has occurred, the right of the insured to indemnity 
is vested and fixed ; and this right may be assigned for value, so as 
to give an equitable claim to the assignee, without the consent of 
the insurers. Policies against fire usually contain a provision that 
an assignment of the property, or of the policy, shall avoid the 
policy. But this does not apply to an assignment of the claim after 
a loss. 

A dissolution of the partnership before loss, and a division of the 
goods, so that each partner owned distinct portions, was held to be 
in violation of a condition against " any transfer or change of title 
in the property insured." 

A conveyance by one insured, intended to secure a debt, would be 
treated in a court of equity as a mortgage, and therefore it would 
not terminate the interest of the insured. A contract to convey is 
not an alienation. Nor is a conditional sale, where the condition 
must precede the sale, and is not yet performed. Nor is a mort- 
gage, not even after breach, and perhaps entry for a breach, and 
not until foreclosure. Nor selling and immediately taking back. 
In some policies, however, alienation by mortgage is directly pro- 
hibited. 

If several estates are insured in one policy, and one or more are 
aliened (or conveyed away), the policy is void as to those only 
which are aliened. If many owners are insured in one policy, a 
transfer by one or more to strangers, without the act or concurrence 
of the other owners, will avoid the policy for only so much as is 
thus transferred. 

In practice, care should be taken to have all such transfers regu- 
larly made and notified to the insurers, and their consent obtained, 
and duly indorsed or certified, and all the rules or usages of the 
insurers in this respect complied with. 



SECTION IX. 
NOTICE AND PROOF. 

Where the policy requires a certificate of the loss, the produc- 
tion of it is a condition precedent to any claim for payment. And 
it must be such a certificate as is required ; but a substantial com- 
pliance with its requirements is sufficient. So, too, if the notice is 
to be given forthwith, there must be no unreasonable or unnecessary 
delay. And all the circumstances of the case are considered, in 
determining whether there was or was not due diligence. Where a 



A CITIZEN OF THE UNITED STATES. 593 

certificate is required to be furnished " as soon as possible," it is 
still sufficient if it be furnished within a reasonable time. But 
where the fire took place in November, and the account of loss was 
not furnished till the March following, it was held not to be a com- 
pliance with the conditions. Generally, this is a question for the 

jury- 
As premises insured against fire may be supposed always open 
to the inspection of the agents of the insurers, a general notice of 
the fire will be enough. 

SECTION X. 
ADJUSTMENT AND LOSS. 

Insurers against fire are not held to pay for loss of profits, gains 
of business, or other indirect and remote consequences of a loss by 
fire. We do not know, however, why profits may not be expressly 
insured against fire where it is not forbidden by or inconsistent 
with the charter of the insurers. 

There is one wide difference between the principle of adjustment 
of a marine policy and of a fire policy. In the former, if a propor- 
tion only of the value is insured, the insured is considered as his 
own insurer for the residue, and only an equal proportion of the 
loss is paid. Thus, if, on a ship valued at $10,000, $5,000 be in- 
sured, and there is a loss of one-half, the insurers pay only one-half 
of the sum they insure, just as if some other insurer had insured the 
other $5,000. But in a fire policy, the insurers pay in all cases the 
whole amount which is lost by fire, provided only that it does not 
exceed the amount which they insure. 

Most of the fire policies used in this country give the insurers 
the right of rebuilding or repairing premises destroyed or injured by 
fire, instead of paying the amount of the loss. If, under this power, 
the insurers rebuild the house insured at a less cost than the 
amount they insure, this does not exhaust their liability ; they are 
now insurers of the new building for the difference between its cost 
and the amount they have insured. And if the new building burns 
down or is injured while the policy continues, the insured may claim 
so much as, added to the cost already incurred, shall equal the sum 
for which he was insured. 

It may be important to add, that, under our common mutual 
policies, the insured will also be liable for assessments for losses 
after the destruction of his building by fire, during the whole term 
of the policy. 

The jury, to whom the whole question of damages is given, are 
to inquire into the greater value of a proposed new building, or of 

38 



594 THE PROPERTY RIGHTS OF 

a repaired building, and assess only such damages as shall give the 
insured complete indemnity. 

Where insurers reserve a right to replace articles destroyed, if 
the insured refuse to permit them to examine and inventory the 
goods that they might judge what it was expedient for them to do, 
such conduct on the part of the insured would be strong evidence 
to the jury to prove an overstatement of loss. 

I have not thought it would he useful to give forms of various 
policies. Applicants never make them, as they are always furnished 
by the insurance companies ; each one having its own form, and 
using no other. But the following forms, of immediate notice of 
loss, of a later and fuller statement under oath with a magistrate's 
certificate, and assignments of policies, may be found useful. They 
must be all adapted, in practice, to the peculiar circumstances of 
each case. 



(179.) 

TO THE FIRE INSURANCE COMPANY. 

Take notice, That on the day of inst. (or 

last) , a fire broke out in the building No. in Street, 

in the city of (or otherwise describe the location), whereon I am insured by 
your policy, No. the sum of dollars. I have not 

yet learned, and do not know, in what way the fire was caused; but, as 
soon as I am able, I will give you further information on the subject. (If 
the insured or his agent knows, or has reasonable cause for supposing, how 
the fire was caught, he should say so, and state what particulars he can.) 

The house was wholly (or partially) destroyed by fire ; and I shall claim 
a payment from you undea? your policy. 

Written and sent this day of in the year 

(Signature.) (Seal.) 

Witness to the signature and sending. 

(Signature of witness.) 

Some insurance companies, a&&, indeed, the express provisions of 

some policies, require that a sworn statement of the facts and cir- 
cumstances of the loss, and the particulars of the claim, be given to 
the insurance company, with the certificate of a magistrate. I do 
not know that this course might not be always prudent. The form 
in which it is done must vary in .each case, and be adapted to the 
peculiarities of that case. But the following form will generally be 
a safe gruide : — 



A CITIZEN OF THE UNITED STATES, 595 

(180.) 

TO THE INSURANCE COMPANY. 

Whereas, The said Insurance Company, by their policy 

numbered and dated on the day of in the 

year caused me to be insured in the sum of dollars 

against loss or damage by fire to the following-described building; that is 
to say (here describe or designate the building sufficiently to show clearly 
where and what it was, taking the description from the policy, but not copying 
it at length). Now, I, the said (name of the assured), having been solemnly 
sworn, do depose and say, — 

1. That on the day of now last past, between the 
hours of and a fire broke out in said building, whereby 
the same was greatly damaged (or destroyed), and the said fire was, accord- 
ing to my best knowledge and belief, caused by (here set forth the causes so 
far as they are known, or supposed on reasonable grounds), and I aver that 
the said fire was not caused by me, or by my design and concurrence, or 
with any previous knowledge on my part, or in any manner attributable to 
me or to my agency, direct or indirect. 

2. That I was interested in the said property in the following manner; 
that is to say (here say whether the insured owned the property himself, or was 
a tenant of it, or a landlord, or mortgagor, or mortgagee, or trustee, or how 
otherwise he was interested). 

3. That there was no other insurance against fire of the said property 
(or, if there was any other, state what it was) . 

4. That the occupants of the building at the time of the fire were, so 
far as is known to me, the following persons (set forth the names of the 
occupants, the parts of the building occupied by each one, and the purpose for 
which it was occupied). 

5. That the actual value of the building in dollars at the time of the 
fire was, according to my best belief and judgment, dollars. 
(If the property was personal, as goods, furniture, or the like, say, as may 
appear by the schedule annexed). 

6. That the whole of said value was lost by the fire; and being more 
than the sum insured thereon, I now claim of said insurance company said 
sum of dollars. (Or if the building was injured, and not de- 
stroyed, then say that so much of the value — stating the amount — of said 
building was lost by the fire, inasmuch as the building, if repaired, cannot be 
restored to as good a condition as before, for a less amount than that sum.) 

Witness my hand at this day of 

in the year 

(Signature.) 

(Certificate to be appended to the foregoing.) 
State of } 

f-ss. 
County op ) 

I (name of the magistrate) , a justice of the peace in and for said county 
(or what else may be his office), dwelling near to the property above men- 



596 THE PROPERTY RIGHTS OF 

tioned, in the town (or city) of have investigated the circum- 

stances attending the said fire, and am personally acquainted with the said 
(name of insured), whose character is good; and I believe that the above 
statement to which the said (name of insured) has made oath in my pres- 
ence is true; that the loss cannot be imputed to fraud or misconduct on 
his part; and that he has suffered by the fire a loss of dollars. 

I am not in any way interested in the said property, or in the said policy, 
or any claim under the same. 

In witness of all which I have hereunto set my hand and my seal 
(of office, if he has an official seal), at this day of 

in the year 

(Signature of magistrate.) (Seal.) 



(181.) 
ASSIGNMENT OF A POLICY TO BE INDORSED THEREON. 

I (name of the insured) , insured by the within policy, in consideration 
of a dollar paid to me by (name of the assignee) , and for other good con- 
siderations, do hereby assign and transfer to the said (name of the assignee) 
this policy, together with all the right, title, interest, and claim which I 
now have or hereafter may have in, to, or under the same. 

Witness my hand, this day of in the year 

(Signature.) 

(Witness.) 

It is always best to write this assignment on the policy itself; 

but it may sometimes happen that this is not convenient or possi- 
ble, the insured who wishes to make the assignment not having the 
policy within his possession or easy reach. Then the assured may 
use the following form : — ' 



(182.) 

"Whereas, The Insurance Company, by their policy, num- 

bered and dated on day of in the year 

caused me to be insured against loss or damage by fire on a certain build- 
ing, being (designate the building by location or otherwise) , in the sum of 
dollars. Now, I, the said (name of the insured) , in considera- 
tion of one dollar paid to me by (name of the assignee), and for other good 
considerations, have transferred and assigned, and do by these presents 
transfer and assign, unto the said (name of the assignee), the said policy of 
insurance, and all the right, title, interest, or claim which I now have or 
ever may have in, to, or under the same, and in and to any sum of 
money which now is or shall ever be payable thereon. 

Witness my hand, this day of in the year 

(Signature.) 

(Witness.) 



A CITIZEN OF THE UNITED STATES. 597 

If the policy be on goods, or vary in other respects, then the 
assignment must be made to conform to the facts. 

It is always best to get the assent of the insurance company to 
the transfer before it is made. And always the assignment, when 
made, should be exhibited without loss of time, to them or to their 
agent authorized to give their assent, and this assent to the assign- 
ment be obtained and written upon the policy, or, if that cannot 
conveniently be, on the assignment, and in the books of the insur- 
ance company. 



CHAPTER XXIV. 

LIFE IJSTSUKANCE. 

SECTION I. 
THE PURPOSE AND METHOD OF LIFE INSURANCE, 

If A insures B a certain sum payable at B's death to B's repre- 
sentatives, we have only the insurer and insured, as in other cases 
of insurance. But if A insures B a sum payable to B or his repre- 
sentatives on the death of C, although C is often said to be insured, 
this is not quite accurate ; more properly, B is the insured party 
and C is the life-insured. 

Life insurance is usually effected in this country in a way quite 
similar to that of fire insurance by our mutual companies. That is, 
an application must be first made by the insured ; and to this appli- 
cation queries are annexed by the insurers, which inquire, with great 
minuteness and detail, into every thing which can affect the proba- 
bility of life. These must be answered fully; and if the insurer 
be other than the life-insured, there are usually questions for each 
of them. There are also, in some cases, questions which should be 
answered by the physician of the life-insured, and others to be 
answered by his friends or relatives ; or other means are provided 
to have the evidence of the physician and friends. 

These questions are not precisely the same in the forms given out 
by any two companies ; and we do not speak of them in detail here. 
The rules as to the obligation of answering them, and as to the 
sufficiency of the answers, must be the same in life insurance that 
we have already stated in the chapter on fire insurance; or, rather, 
must rest upon the same principles. And the same rules and prin- 
ciples of construction therein set forth would doubtless be applied 



598 THE PROPERTY RIGHTS OF 

to the question whether a contract had been made, or at what time 
it went into effect. 

It may be said generally, that it is prudent to add to the 
answers to these questions, " according to my best knowledge and 
belief." Then the insurers would be held, although the answer 
was erroneous, if it was made in good faith. 



SECTION II. 
THE PREMIUM. 

If the insurance be for one year only, or less, the premium is 
usually paid in money, or by a note, at once. If for more than a 
year, it is usually payable annually. But it is common to provide 
or agree that the annual payment may be made quarterly, with 
interest from the day when the whole is due. Notes are usually 
given ; but if not, the whole amount would be considered due. If 
A, whose premium of $100 is payable for 1856 on the first day of 
January, then pays $25, and is to pay the rest quarterly, but dies 
on the 1st of February, the $75 due, with interest from the 1st of 
January, would be deducted from the sum insured. If the policy 
provides that the risk shall "terminate in case the premium charged 
shall not be paid in advance on or before the day at noon on which 
the same shall become due and payable," and the day of payment 
falls on Sunday, the premium is not payable until Monday, although 
the assured dies on Sunday afternoon. 

Provision is sometimes made that a part of the premium shall 
be paid in money, and a part in notes, which are not called in 
unless needed to pay losses. The greater the accommodation thus 
allowed, the more convenient it is obviously to the insured, but 
the less certain will he be of the ultimate payment of the policy, 
because, in the same degree, the fund for the payment consists only 
of such notes, and not of payments actually made and invested. 
There is a great diversity among the life insurance companies in 
this respect. But even the strictest, or those which require that 
all the premiums shall be paid in money, usually provide also that 
an amount may remain overdue, without prejudice, which does not 
exceed a certain proportion — say one-half or one-third — of the 
money actually paid in on the policy. This is considered, under all 
ordinary circumstances, safe for the company, because every policy 
is worth as much as this to the company. Or, in other words, it 
would always be profitable for the company to obtain a discharge 
of its obligation on a policy, by repaying the insured so small a 
proportion of what has been received from him. 



A CITIZEN OF THE UNITED STATES. 599 

Taking a note would certainly be a waiver of immediate pay- 
ment, if not itself a payment. 

The premiums, after the first, must be paid on the days on 

which they fall due. If no hour be mentioned, then it is believed 
that the insured would have the whole day, even to midnight. It is 
possible, however, that he might be restricted to the usual hours of 
business, and perhaps even to those in which the office of the insurers 
is open for business. 

Practically, the utmost care is requisite on the part of the 
assured to pay his premium as soon as it is due ; and it is a wise 
precaution to pay it a little before. This is the only proper and 
safe course. But we believe it to be not unusual for the insurers to 
accept the premium if offered them a few days after, and continue 
the policy as if it were paid in season, provided no change in the 
risk has occurred in the mean time ; but this should not be trusted 
to without an express agreement, if it can be avoided. 

Sometimes the rules of the company, and in some States the 
statutes, provide that, if a policy be defeated by a non-payment of 
the premium, the insured does not lose all that he has paid ; but a 
certain proportion of the value which the policy then had shall be 
paid to him. 

The time of the death is sometimes very important. If the 
policy be for a definite period, it must be shown that the death 
occurs within it. If there were an insurance on a man's life for 
a year, and some short time before the expiration of the term he 
received a mortal wound, of which he died one day after the year, 
the insurer would not be liable. And the terms of the policy may 
possibly make it necessary to determine which of two persons lived 
longest ; as if a sum were insured on the joint lives of two persons, 
to be paid to the representatives of the survivor. 



SECTION III. 
THE RESTRICTIONS AND EXCEPTIONS IN LIFE POLICIES. 

Our policies usually contain certain restrictions or limitations 
as to place, the life-insured (he whose life is insured for his own or 
another's benefit) not being permitted to go beyond certain limits, 
or to certain places. But there is nothing to prevent a bargain 
permitting the life-insured to pass beyond these bounds, either in 
consideration of new and further payments, or of the common pre- 
mium. 

So certain trades or occupations, as of persons engaged in 
making gunpowder, or of engineers or firemen about steam-engines, 



oOO THE PROPERTY RIGHTS OF 

are considered extra-hazardous, and as therefore prohibited, or re- 
quiring an extra premium. 

The exception, however, which has created most discussion is 
that which makes death by suicide an avoidance of the policy. The 
clause respecting duelling is plain enough ; and no one can die in a 
duel without his own fault. But it is otherwise with regard to self- 
inflicted death. This may be voluntary and wrongful, or the result 
of insanity and disease, for which the suffering party should not be 
held responsible. 

The general principles of the law of contracts, and of the law 
of insurance particularly, would lead to the conclusion that " death 
by his own hands," but without the concurrence of a responsible 
will or mind, would not discharge the insurers, without a positive 
provision to that effect. We should put such a death on the same 
footing with one resulting from a mere accident, brought about by 
the agency, but without the intent, of the life-insured. As if poison 
were sent or given to him by mistake for medicine, and he swallowed 
it under the same mistake. 

Much question has been made when a man may be believed to 
be dead, simply because nothing is known about him, or has been 
known for a long period. But there is not and cannot be any other 
presumption of law on the subject than that, after a certain period 
of absence and silence, there is a presumption of death; and seven 
years has been mentioned in England and in this country as this 
period, and even sanctioned by legislation in New York. But all 
questions of this kind we regard as pure questions of fact. Which- 
ever party rests his case upon the death or the life of a certain 
person, at a certain time, must satisfy the jury upon this point by 
such evidence as may be admissible and sufficient. 



SECTION IV. 
THE INTEREST OF THE INSURED. 

Every one insured in any way must have an interest in the 
subject-matter of the insurance. A person may effect insurance on 
his own life in the name of a creditor, for a sum beyond the amount 
of the debt, the balance to inure to his family; and the policy will 
be valid for the whole amount insured. Any one may insure his 
own life ; but if the insured and the life-insured are not the same, 
that is, if the insured be insured on some other life than his own, 
interest must be shown. 

A father has an insurable interest in the life of his minor son. 
And the general rule, is, that any substantial pecuniary interest is 



A CITIZEN OF THE UNITED STATES. 601 

sufficient, although not strictly legal nor definite. This has been 
held in the case of a sister dependent on a brother for support ; 
and the rule would be held to apply not only to all relations, but 
where there was no relationship, if there were a positive and real 
dependence ; that is, any one may insure a sum on the life of 
any other person on whom he or she really depends for support or 
for comfort. And, generally, it is said to be enough, if, according 
to the ordinary course of events, pecuniary loss or disadvantage 
will naturally and probably result from the death of the one whose 
life is insured. 

So an existing debt gives the creditor an insurable interest 
in the life of a debtor. But if the debt be not founded on a 
legal consideration, it does not sustain the policy. And if the 
debt be paid before the death of the debtor, the insurers are 
discharged. 

SECTION V. 
THE ASSIGNMENT OF A LIFE POLICY. 

Life policies are assignable at law, and are very frequently 

assigned in practice. And the assignee of a policy is entitled on 
the death of the party insured to recover the full sum insured, with- 
out reference to the amount of the consideration paid by him for the 
assignment. A large proportion of the policies which are effected 
are made for the purpose of assignment ; that is, for the purpose 
of enabling the insured to give this additional security to his cred- 
itor. If there are rules of the company which relate to an assign- 
ment of it, or if the terms of the policy do so, they are binding on 
the parties. On the one hand, an assignment would operate as a 
discharge of the insurers, provided a rule or expressed provision 
gave this effect to the assignment ; and, on the other, if the agree- 
ment were that the policy should continue in favor of the assignee, 
even after an act which discharged it as to the insured him- 
self, — as, for example, his suicide, — the insurers would be bound 
by it. 

It is an important question, what constitutes an assignment. 
The general answer must be, any act distinctly importing an as- 
signment has that effect. And, therefore, a delivery and deposit of 
the policy for the purpose of assignment will operate as such, with- 
out a formal written assignment. So will any transaction which 
gives to a creditor of the insured a right to payment out of the 
insurance. 

It seems, however, that delivery is necessary. And where an 
assignment was indorsed on the policy, and notice given to the 



602 THE PROPERTY RIGHTS OF 

insurer, but the policy remained in the possession of the insured, 
it was held that there was no assignment. Where, however, the 
assignment is by a separate deed, which is duly executed and 
delivered, this is an assignment of the policy, without actual de- 
livery of the policy itself. 



SECTION VI. 
WARRANTY, REPRESENTATION, AND CONCEALMENT. 

The general principles on this subject are the same which we 
have already stated in reference to fire insurance. In life policies, 
however, the questions which must be answered are so minute, and 
cover so much ground, that difficulty seldom arises except in rela- 
tion to the answers. One advisable precaution is for the answerer 
to discriminate carefully between what he knows and what he 
believes. If he says simply "yes" or "no," or gives an equivalent 
answer, this is in most cases a strict warranty, and avoids the policy 
if there be any material mistake in the reply. But where the an- 
swerer adds the words, " to the best of my knowledge and belief," 
he warrants only the fact of his belief, or, in other words, nothing 
but his own entire honesty. 

The cases which turn upon the answers to the questions are 
very numerous ; but they necessarily rest upon the especial facts 
of each case, and hardly permit that general rules should be drawn 
from them. Some, however, may be stated. 

The first is, that perfect good faith should be observed. The 
want of it taints a policy at once ; and the presence of it goes far 
to protect one. Thus, where the life-insured was beginning to be 
insane, but was wholly unconscious of it, the policy was not vitiated 
by the concealment, although two doctors in attendance upon him 
knew how the case stood. 

Most of the policies of the present day provide that the policy 
is made on the faith that the statements in the application for in- 
surance are true, and if they shall be found in any respect untrue, 
the policies shall be avoided. Then the stipulations are considered 
as warranties, and if untrue, even in a point immaterial to the risk, 
avoid the policies. 

There is a warranty, or statement, usually making a part 
of nearly all life policies; it is, that the life-insured is in good health. 
But this does not mean perfect health, or freedom from all symp- 
toms or seeds of disease. It means reasonably good health ; and 
loose as this definition or rule may be, it would be difficult to give 
any other. And if a jury, on the whole, are satisfied that the 



A CITIZEN OF TEE UNITED STATES. 603 

constitution of one warranted to be " in good health " is radically 
impaired, and the life made unusually precarious, there is a breach 
of the warranty, although no specific disease is shown which must 
have that effect. On the other hand, this warranty is not broken 
by the presence of a disease which does not usually tend to shorten 
life (in one English case dyspepsia was said to be such a disease), 
unless it were organic, or had increased to that extreme degree as 
to be of itself dangerous. 

Consumption is the disease which is most feared in this country, 
as well as in England. And the questions which relate to the symp- 
toms of it, as spitting of blood, cough, and the like, are exceedingly 
minute. But here also there must be a reasonable construction of 
the answers. Thus, if spitting of blood be positively denied, there 
may be no falsification in fact, though literally speaking the life- 
insured may have spit blood many times, as when a tooth was 
drawn, or from some accident. If there be an action on the 
policy, and the insurers rest their defence on any falsification of 
this kind, the question usually put to the jury is : Was the party 
affected by any of these or similar symptoms, in such wise that they 
indicated a disorder tending to shorten life ? And any symptom 
of this kind, however slight, — as a drop or two of blood having 
ever flowed from inflamed or congested lungs, — should be stated. 
Statements materially untrue on these points avoid the policy, 
although the insured, at the time of his application, did not be- 
lieve that he had any pulmonary disease, and the statement made 
by him was not intentionally false, but, according to his belief, true. 

The insurers almost always ask who is the physician of the life- 
insured, that they may make inquiries of him if they see fit. And 
his name must be stated fully and accurately. It is not enough to 
give the name of the usual attendant ; but every physician really 
consulted should be named, and every one consulted as a physician, 
although he is an irregular practitioner or quack. 

If the warranty he that the life-insured is a person of sober 
and temperate habits, it has been held, in an action on such a policy, 
that the jury are not to inquire whether his habits of drinking are 
such as might injure his health ; for if he has any "habits of drink- 
ing," this would discharge the insurers, because they have a perfect 
right to say that they will insure only those who are temperate. 
But it may be answered, that although the insurers have this right, 
and there may be good reasons why this should be the general prac- 
tice, yet unless they use the word "abstinence," or something equiv- 
alent, they have no right to say that any one is not " temperate " 
who does not drink enough to affect his health ; for as, generally, 
all intemperance must affect health injuriously, if there be no such 



604 TEE PROPERTY RIGHTS OF 

injury, the presumption would be that there was no intemperance ; 
and there is clearly a broad distinction between temperance and 
total abstinence. 

An answer, "not subject to fits," is not necessarily falsified 
by the fact that the life-insured has had one or more fits. But if 
the question had been, " Have you ever had fits ? " then it is said 
that any fit of any kind, and however long before, must be stated. 
But if a man had a fit when a young child, and forgot to mention 
it, or considered it wholly unimportant, and it had nothing to do 
with his state of health, it would hardly be held a falsification which 
would avoid the policy. 

As there is always a general question as to any facts affect- 
ing health not particularly inquired of, a concealment of such a fact 
goes to a jury, who are to judge whether the fact was material, and 
whether the concealment were honest. As when a life-insured was 
a prisoner for debt, and so without the benefit of air and recreation, 
and this was not told; and where a woman whose life was insured 
had become the mother of a child under disgraceful circumstances 
some years before, and this fact was concealed, — the plaintiffs were 
non-suited, and lost the case. 

If the policy,' and the papers annexed or connected, put no 
limits on the location of the life-insured, he may go where he will. 
But if, when applying for insurance, he intends going to a place of 
peculiar danger, and this intention is wholly withheld, it would be a 
fraudulent concealment. 

If facts be erroneously but honestly misrepresented, and the 
insurers, when making the policy, knew the truth, the error does not 
affect the policy. Nor does the non-statement of a fact which 
diminishes the risk. 

If upon a proposal for a life insurance, and an agreement 
thereon, a policy be drawn up by the insurers, and presented to the 
insured, and accepted by them, which differs from the terms of the 
agreement, and varies the rights of the parties concerned, equity 
will interfere and deal with the case on the footing of this agree- 
ment, and not of the policy. But not if it be shown by evidence 
and circumstances that it was intended by the insurers to vary 
the agreement, and propose a different policy to the insured, and 
that this was understood by the insured, and the policy so ac- 
cepted. 



A CITIZEN OF THE UNITED STATES. 605 



SECTION VII. 

INSURANCE AGAINST ACCIDENT, DISEASE, AND DISHONESTY 
OF SERVANTS. 

Of late years, all of these forms of insurance have come into 
practice, but not so long or so extensively as to require that we 
should speak of them at length. In general, it must be true that 
the principles already stated, as those of insurance against fire or 
death, must apply to these other — and indeed to all other — forms 
of insurance, excepting so far as they may be qualified by the nature 
of the contract. 

"From one interesting case which has occurred in England, it 
seems that, when an application is made for insurance or guaranty 
against the fraud or misconduct of an agent, questions are proposed 
as we should expect, which are calculated to call forth all the 
various facts illustrative of the character of the agent, and all which 
could assist in estimating the probability of his fidelity and discre- 
tion. But a declaration of the applicant as to the course or conduct 
he was to pursue was distinguished from a warranty. He may re- 
cover on the policy, although he changes his course, provided the 
declaration was honest when made, and the change of conduct was 
also in good faith. In this case the application was for insurance of 
the fidelity of the secretary of an institution. There was a question 
as to when, and how often, the accounts of the secretary would be 
balanced and closed ; and the applicant answered that these accounts 
would be examined by the financial committee once a fortnight. A 
loss ensued from the dishonesty of the secretary ; and it appeared 
to have been made possible by the neglect of the committee or 
the directors to examine his accounts in the manner stated in the 
policy. But the insurers were held, on the ground that there was 
no warranty. 



CHAPTER XXV. 
BANKRUPTCY. 

The Constitution of the United States authorizes Congress to 
establish " uniform laws on the subject of bankruptcies throughout 
the United States." In 1800, a bankrupt law was passed, limited to 
five years ; but it was repealed before it had been in operation three 



606 THE PROPERTY RIGHTS OF 

years. In 1841, another bankrupt law was passed, and was repealed 
eighteen months afterwards. In March, 1867, another bankrupt law 
was passed, entitled " An act to establish a uniform system of bank- 
ruptcy throughout the United States." Several amendatory acts 
were passed, of which much the most important was that of 22 June, 
1874. This act provides so carefully that fraud shall be prevented 
and justice done in all cases, and seems to be so generally useful and 
acceptable, that I think it will probably be permanent, and, without 
being repealed, will be amended from time to time as new exigencies 
arise, and as experience shows the need of new or different provi- 
sions. I now give an abstract of all the sections, excepting those 
of the greatest and most frequent practical importance, and these I 
give in full. 

Section 1. Makes the several District Courts of the United States 
Courts of Bankruptcy, with full jurisdiction over all cases which 
come before them, and arose within their districts. 

Sect. 2. The several Circuit Courts of the United States shall 
have a general superintendence and jurisdiction of all cases and 
questions arising under this act. 

Sect. 3. Concerns the appointment of registers in bankruptcy, 
the manner of the appointment, and who they may be. 

Sect. 4. Describes the powers and duties of registers, and their 
fees. 

Sect. 5. Provides for the proceedings before the registers, the 
removal of registers by the judge of the District Court, and the fill- 
ing of the vacancy. 

Sect. 6. That the register of the parties concerned may take 
the opinion of the judge of the District Court in cases or upon ques- 
tions where that is desired. 

Sect. 7. Provides for the attendance of parties and witnesses 
when and where summoned, and for the punishment of perjury. 

Sects. 8, 9, and 10. Relate to appeals from the District Court to 
the Circuit Court, and from the Circuit Court to the Supreme Court 
if the matter in dispute exceeds 82,000. And gives the Supreme 
Court power to provide rules, orders, and forms for practice under 
this act. 

Sect. 11. States how a person wishing to be made a bankrupt 
may proceed, and what he must do. This section I give in full. 



VOLUNTARY BANKRUPTCY. COMMENCEMENT OF PROCEEDINGS. 

Sect. 11. And he il further enacted, That if any person residing within 
the jurisdiction of the United States, owing debts provable under this act 
exceeding the amount of three hundred dollars, shall apply by petition ad- 



A CITIZEN OF TEE UNITED STATES. 607 

dressed to the judge of the judicial district in which such debtor has resided 
or carried on business for the six months next immediately preceding the 
time of filing such petition, or for the longest period during such six months, 
setting forth his place of residence, his inability to pay all his debts in full, 
his willingness to surrender all his estate and effects for the benefit of his 
creditors, and his desire to obtain the benefit of this act, and shall annex 
to his petition a schedule, verified by oath before the court, or before a 
register in bankruptcy, or before one of the commissioners of the Circuit 
Court of the United States, containing a full and true statement of all his 
debts, and, as far as possible, to whom due, with the place of residence of 
each creditor, if known to the debtor, and, if not known, the fact to be so 
stated, and the sum to each creditor, also the nature of each debt or de- 
mand, whether founded on written security, obligation, contract, or other- 
wise, and also the true cause and consideration of such indebtedness in 
each case, and the place where such indebtedness accrued, and a statement 
of any existing mortgage, pledge, lien, judgment, or collateral or other 
security given for the payment of the same ; and shall also annex to his 
petition an accurate inventory, verified in like manner, of all his estate, 
both real and personal, assignable under this act, describing the same, and 
stating where it is situated, and whether there are any, and, if so, what in- 
cumbrances thereon, the filing of such petition shall be an act of bank- 
ruptcy, and such petitioner shall be adjudged a bankrupt: Provided, That all 
citizens of the United States, petitioning to be declared bankrupt, shall, in 
filing such petition, and before any proceedings thereon, take and subscribe 
an oath of allegiance and fidelity to the United States, which oath shall be 
filed and recorded with the proceedings in bankruptcy. And the judge of 
the District Courts, or, if there be no opposing party, any register of said 
court, to be designated by the judge, shall forthwith, if he be satisfied that 
the debts due from the petitioner exceed three hundred dollars, issue a 
warrant, to be signed by such judge or register, directed to the marshal of 
said district, authorizing him forthwith, as messenger, to publish notices in 
such newspapers as the warrant specifies; to serve written or printed notice, 
by mail or personally, on all creditors upon the schedule filed with the 
debtor's petition, or whose names maybe given to him, in addition, by the 
debtor, and to give such personal or other notice to any persons concerned 
as the warrant specifies; but whenever the creditors of the bankrupt are so 
numerous as to make any notice now required by law to them, by mail or 
otherwise, a great and disproportionate expense to the estate, the court 
may, in lieu thereof, in its discretion, order such notice to be given by 
publication in a newspaper or newspapers, to all such creditors whose 
claims, as reported, do not exceed the sums, respectively, of fifty dollars; 
which notice shall state, — 

First, That a warrant in bankruptcy has been issued against the estate 
of the debtor. 

Second, That the payment of any debts and the delivery of any prop- 
erty belonging to such debtor to him or for his use, and the transfer of any 
property by him, are forbidden by law. 

Third, That a meeting of the creditors of the debtor, giving the names, 
residences, and amounts, so far as known, to prove their debts and choose 



608 THE PROPERTY RIGHTS OF 

one or more assignees of his estate, -will be held at a court of bankruptcy, 
to be holden at a time and place designated in the warrant, not less than 
ten nor more than ninety days after the issuing of the same. 

Sect. 12. Provides for the meetings of creditors, called under 
the preceding section. 

Sects. 13 and 14. Provide for the election or appointment, the 
duties, authority, and conduct of the assignee ; determine what prop- 
erty shall be exempted, and what property must be transferred to 
the assignee. These sections I give in full. 

ASSIGNMENTS AND ASSIGNEES. 

Sect. 13. And he it further enacted, That the creditors shall, at tne 
first meeting held after due notice from the messenger, in presence of a 
register designated by the court, choose one or more assignees of the estate 
of the debtor ; the choice to be made of the greater part in value and in 
number of the creditors who have proved their debts, If no choice is made 
by the creditors at said meeting, the judge, or, if there be no opposing in- 
terest, the register, shall appoint one or more assignees. If an assignee, so 
chosen or appointed, fails within five days to express in writing his accept- 
ance of the trust, the judge or register may fill the vacancy. All elections 
or appointments of assignees shall be subject to the approval of the judge; 
and when in his judgment it is for any cause needful or expedient, he may 
appoint additional assignees, or order a new election. The judge at any 
time may, and, upon the request in writing of any creditor who has proved 
his claim, shall require the assignee to give good and sufficient bond to 
the United States, with a condition for the faithful performance and dis- 
charge of his duties; the bond shall be approved by the judge or register 
by his indorsement thereon, shall be filed with the record of the case, and 
inure to the benefit of all creditors proving their claims, and may be prose- 
cuted in the name and for the benefit of any injured party. If the assignee 
fails to give the bond within such time as the judge orders, not exceeding 
ten days after notice to him of such order, the judge shall remove him, and 
appoint another in his place.- 

Sect. 14. And he it further enacted, That as soon as said assignee is 
appointed and qualified, the judge, or, where there is no opposing interest, 
the register, shall, by an instrument under his hand, assign and convey to 
the assignee all the estate, real and personal, of the bankrupt, with all 
his deeds, books, and papers relating thereto, and such assignment shall 
relate back to the commencement of said proceedings in bankruptcy, and 
thereupon, by operation of law, the title to all such property and estate, 
both real and personal, shall vest in said assignee, although the same is 
then attached on mesne process as the property of the debtor, and shall 
dissolve any such attachment made within four months next preceding the 
commencement of said proceedings : Provided, however, That there shall 
be excepted from the operation of the provisions of this section the necessary 
household and kitchen furniture, and such other articles and necessaries of 



A CTTIZEN OF THE UNITED STATES. 609 

such bankrupt as the said assignee shall designate and set apart, having 
reference in the amount to the family, condition, and circumstances of the 
bankrupt, but altogether not to exceed in value, in any case, the sum of 
five hundred dollars; and also the wearing apparel of such bankrupt, and 
that of his wife and children, and the uniform, arms, and equipments of 
any person who is or has been a soldier in the militia or in the service of 
the United States, and such other property as now is, or hereafter shall be, 
exempted from attachment or seizure, or levy on execution by the laws of 
the United States, and such other property not included in the foregoing 
exceptions as is exempted from levy and sale upon execution or other pro- 
cess, or order of any court, by the laws of the State in which the bankrupt 
has his domicile at the time of the commencement of the proceedings in 
bankruptcy, to an amount not exceeding that allowed by such State exemp- 
tion laws in force in the year eighteen hundred and seventy-one. Pro- 
vided, That the foregoing exception shall operate as a limitation upon the 
conveyance of the property of the bankrupt to his assignees, and in no 
case shall the property hereby excepted pass to the assignees, or the title 
of the bankrupt thereto be impaired or affected by any of the provisions of 
this act; and the determination of the assignee in the matter shall, on ex- 
ception taken, be subject to the final decision of the said court : And pro- 
vided, further, That no mortgage of any vessel or of any other goods or 
chattels, made as security for any debt or debts, in good faith and for 
present considerations, and otherwise valid, and duly recorded, pursuant to 
any statute of the United States, or of any State, shall be invalidated or 
affected hereby; and all the property conveyed by the bankrupt in fraud 
of his creditors; all rights in equity, choses in action, patents, and patent 
rights and copyrights; all debts due him, or any person for his use, and all 
liens and securities therefor; and all his rights of action for property or 
estate, real or personal, and for any cause of action which the bankrupt had 
against any person arising from contract or from the unlawful taking or 
detention or of injury to the property of the bankrupt; and all his rights 
of redeeming such property or estate, with the like right, title, power, and 
authority to sell, manage, dispose of, sue for, and recover or defend the 
same, as the bankrupt might or could have had if no assignment had been 
made, shall, in virtue of the adjudication of bankruptcy and the appoint- 
ment of his assignee, be at once vested in such assignee; and he may sue 
for and recover the said estate, debts, and effects, and may prosecute and 
defend all suits at law or in equity, pending at the time of the adjudica- 
tion of bankruptcy, in which such bankrupt is a party in his own name, 
in the same manner and with the like effect as they might have been 
presented or defended by such bankrupt; and a copy, duly certified by 
the clerk of the court under the seal thereof, of the assignment made 
by the judge or register, as the case may be, to him as assignee, shall be 
conclusive evidence of his title as such assignee to take, hold, sue for, 
and recover the property of the bankrupt, as hereinbefore mentioned; 
but no property held by the bankrupt in trust shall pass by such assign- 
ment. !No person shall be entitled to maintain an action against an 
assignee in bankruptcy for any thing done by him as such assignee, 
without previously giving him twenty days' notice of such action, speci- 

39 



610 THE PROPERTY RWSTS OF 

fying the cause thereof, to the end that such assignee may have an oppor- 
tunity of tendering amends, should he see fit to do so. No person shall 
be entitled, as against the assignee, to withhold from him possession of 
any books of account of the bankrupt, or claim any lien thereon ; and no 
suit in which the assignee is a party shall be abated by his death or 
removal from office, but the same may be prosecuted and defended by 
his successors, or by the surviving or remaining assignee, as the case may 
be. The assignee shall have authority, under the order and direction of 
the court, to redeem or discharge any mortgage or conditional contract, or 
pledge or deposit, or lien upon any property, real or personal, whenever 
payable, and to tender due performance of the condition thereof, or to sell 
the same subject to such mortgage, lien, or other incumbrances. The 
debtor shall also, at the request of the assignee, and at the expense of the 
estate, make and execute any instruments, deeds, and writings which may 
be proper, to enable the assignee to possess himself fully of all the assets 
of the bankrupt. The assignee shall immediately give notice of his ap- 
pointment by publication, at least once a week for three successive weeks, 
in such newspapers as shall, for that purpose, be designated by the court, 
due regard being had to their general circulation in the district or in that 
portion of the district in which the bankrupt and his creditors shall reside, 
and shall, within six months, cause the assignment to him to be recorded 
im every registry of deeds or other office within the United States where a 
conveyance of any lands owned by the bankrupt ought by law to be re- 
corded; and the record of such assignment, or a duly certified copy 
thereof, shall be evidence thereof in all courts. The court may, in its 
discretion, on sufficient cause shown, and upon notice and hearing, direct 
the receiver or assignee to take possession of the property, and carry on 
the business of the debtor, or any part thereof, under the direction of the 
court, when, in iis judgment, the interest of the estate as well as of the 
creditors will be promoted thereby, but not for a period exceeding nine 
months from the time the debtor shall have been declared a bankrupt. 
Provided, That such order shall not be made until the court shall be satis- 
fied that it is approved by a majority in value of the creditors. 

Sect. 15. Gives some further direction to the assignee, as to de- 
manding, receiving, and selling the property. 

Sect. 16. Gives directions in relation to suits by the assignee to 
recover debts or other effects assigned to him. 

Sect. 17. Gives direction as to the investment by the assignee of 
the estate of the bankrupt ; and gives him power to submit disputed 
demands against debtors to the estate, to arbitration, or to compound 
and settle them. 

Sect. 13. Provides for death, resignation, or removal of the 
assignee, and filling the vacancy ; and states the general duties of 
assignees. 

Sect. 19. Relates to the debts of the bankrupt, payable at the 
time of bankruptcy ; and also his debts payable at a future time. 
This section I give in full. 



A CITIZEN OF THE UNITED STATES. 6H 

Sect. 19. And be it further enacted, That all debts due and payable 
from the bankrupt at the time of the adjudication of bankruptcy, and all 
debts then existing but not payable until a future day, a rebate of interest 
being made when no interest is payable by the terms of contract, may be 
proved against the estate of the bankrupt All demands against the bank- 
rupt for or on account of any goods or chattels wrongfully taken, converted, 
or withheld by him, may be proved and allowed as debts to the amount of 
the value of the property so taken or withheld, with interest. If the bank- 
rupt shall be bound as drawer, indorser, surety, bail, or guarantor upon 
any bill, bond, note, or any other specialty or contract, or for any debt of 
another person, and his liability shall not have become absolute until after 
the adjudication of bankruptcy, the creditor may prove the same after such 
liability shall have become fixed, and before the final dividend shall have 
been declared. In all cases of contingent debts and contingent liabilities 
contracted by the bankrupt, and not herein otherwise provided for, the 
creditor may make claim therefor, and have his claim allowed, with the 
right to share in the dividends, if the contingency shall happen before 
the order for the final dividend ; or he may at any time apply to the court 
to have the present valu^H the debt or liability ascertained and liqui- 
dated, which shall then be crone in such manner as the court shall order, 
and he shall be allowed to prove for the amount so ascertained. Any 
person liable as bail, surety, guarantor, or otherwise for the bankrupt, 
who shall have paid the debt or any part thereof in discharge of the whole, 
shall be entitled to prove such debt, or to stand in the place of the creditor 
if he shall have proved the same, although such payments shall have been 
made after the proceedings in bankruptcy were commenced. And any 
person so liable for the bankrupt, and who has not paid the whole of said 
debt, but is still liable for the same or any part thereof, may, if the cred- 
itor shall fail or omit to prove such debt, prove the same either in the 
name of the creditor or otherwise, as may be provided by the rules, and 
subject to such regulations and limitations as may be established by such 
rules. Where the bankrupt is liable to pay rent, or other debt falling due 
at fixed and stated periods, the creditor may prove for a proportionate part 
thereof up to the time of the bankruptcy, as if the same grew due from 
day to day, and not at such fixed and stated periods. If any bankrupt 
shall be liable for unliquidated damages arising out of any contract or 
promise, or on account of any goods or chattels wrongfully taken, con- 
verted or withheld, the court may cause such damages to be assessed in 
such mode as it may deem best, and the sum so assessed may be proved 
against the estate. No debts other than those above specified shall be 
proved or allowed against the estate. 

Sect. 20. Relates to mutual debts and set-offs ; that the balance 
shall be struck. 

Sect. 21. Prohibits a creditor who proves his debt from bring- 
ing any action against the bankrupt, unless a discharge has been 
refused or withheld. 



612 TEE PROPERTY RIGHTS OF 

Sect. 22 Provides for proof of debts of the creditors of the 
bankrupts, whether individuals or corporations. It must be by 
oath or solemn affirmation, and other and further evidence if it 
be required. This proof may be made before a commissioner, and 
sent by him to the assignee. Debts or claims not duly and suffi- 
ciently proved are to be rejected. 

Sect. 23. Provides for proof of debts before assignee is chosen ; 
declares no creditor who has received any preference or advantage 
from the bankrupt shall receive any dividend unless he surrenders 
the preference or advantage, of whatever kind it may be, to the 
assignee. 

Sect. 24. Provides for appeal from District Court to Circuit 
Court from a decision rejecting his claim. 

Sect. 25. Court may order perishable property, or property to 
which right is disputed, to be sold. 

Sect. 26. Relates to the attendance of bankrupts, and the exam- 
ination of them, and their duties and rights. This section I give 
in full. 

Sect. 26. And be it further enacted, That the court may, on the appli- 
cation of the assignee in bankruptcy, or of any creditor, or without any 
application, at all times require the bankrupt, upon reasonable notice, to 
attend and submit to an examination on oath, upon all matters relating to 
the disposal or condition of his property, to his trade and dealings with 
others, and his accounts concerning the same, to all debts due to or claimed 
from him, and to all other matters concerning his property and estate and 
the due settlement thereof according to law, which examination shall be 
in writing, and shall be signed by the bankrupt and be filed with the other 
proceedings ; and the court may, in like manner, require the attendance 
of any other person as a witness, and if such person shall fail to attend, 
on being summoned thereto, the court may compel his attendance by war- 
rant directed to the marshal, commanding him to arrest such person, and 
bring him forthwith before the court, or before a register in bankruptcy, 
for examination as such witness. If the bankrupt is imprisoned, absent, 
or disabled from attendance, the court may order him to be produced by 
the jailer, or any officer in whose custody he may be, or may direct the 
examination to be had, taken, and certified, at such time and place and in 
such manner as the court may deem proper, and with like effect as if such 
examination had been in court. The bankrupt shall at all times, until his 
discharge, be subject to the order of the court, and shal}, at the expense 
of the estate, execute all proper writings and instruments, and do and per- 
form all acts required by the court touching the assigned property or estate, 
and to enable the assignee to demand, recover, and receive all the property 
and estate assigned, wherever situated ; and for neglect or refusal to obey 
any order of the court, such bankrupt may be committed and punished as 
for a contempt of court. If the bankrupt is without the district, and un- 



A CITIZEN OF THE UNITED STATES. 613 

able to return and personally attend at any of the times, or do any of the 
acts which may be specified or required pursuant to this section, and if it 
appears that such absence was not caused by wilful default, and if, as soon 
as may be after the removal of such impediment, he offers to attend and 
submit to the order of the court in all respects, he shall be permitted so to 
do, with like effect as if he had not been in default. He shall also be at 
liberty, from time to time, upon oath, to amend and correct his schedule 
of creditors and property, so that the same shall conform to the facts. 
For good cause shown, the wife o/any bankrupt may be required to attend 
before the court, to the end that she may be examined as a witness ; and 
if such wife do not attend at the time and place specified in the order, the 
bankrupt shall not be entitled to a discharge unless he shall prove to the 
satisfaction of the court that he was unable to procure the attendance of 
his wife. No bankrupt shall be liable to arrest during the pendency of the 
proceedings in bankruptcy in any civil action, unless the same is founded 
on some debt or claim from which his discharge or bankruptcy would not 
release him. In all causes and trials arising or ordered under this act, the 
alleged bankrupt, and any party thereto, shall be a competent witness. 

Sect. 27. Relates to the distribution of the bankrupt's estate 
This section I give in full. 

THE DISTRIBUTION OF THE BANKRUPT'S ESTATE. 

Sect. 27. And he it further enacted, That all creditors whose debts are 
duly proved and allowed shall be entitled to share in the bankrupt's prop- 
erty and estate pro rata, without any priority or preference whatever, 
except that wages due from him to any operative, or clerk, or house- 
servant, to an amount not exceeding fifty dollars, for labor performed 
within six months next preceding the adjudication of bankruptcy, shall be 
entitled to priority, and shall be first paid in full: Provided, That any 
debt proved by any person liable as bail, surety, guarantor, or otherwise, 
for the bankrupt, shall not be paid to the person so proving the same until 
satisfactory evidence shall be produced of the payment of such debt by 
such person so liable, and the share to which such debt would be entitled 
may be paid into court, or otherwise held for the benefit of the party enti- 
tled thereto, as the court may direct. At the expiration of three months 
from the date of the adjudication of bankruptcy in any case, or as much 
earlier as the court may direct, the court, upon the request of the assignee, 
shall call a general meeting of the creditors, of which due notice shall be 
given, and the assignee shall then report, and exhibit to the court and to 
the creditors just and true accounts of all his receipts and payments, veri- 
fied by his oath, and he shall produce and file vouchers for all payments 
for which vouchers shall be required by any rule of the court ; he shall 
also submit the schedule of the bankrupt's creditors and property as 
amended, duly verified by the bankrupt, and a statement of the whole 
estate of the bankrupt as then ascertained, of the property recovered and 
of the property outstanding, specifying the cause of its being outstanding, 
also what debts or claims are yet undetermined, and stating what sum 



614 THE PROPERTY RIGHTS OF 

remains in his hands. At such meeting the majority in value of the cred- 
itors present shall determine whether any and what part of the net pro- 
ceeds of the estate, after deducting and retaining a sum sufficient to provide 
for all undetermined claims, which, by reason of the distant residence of 
the creditor, or for other sufficient reason, have not been proved, and for 
other expenses and contingencies, shall be divided among the creditors ; 
but unless at least one-half in value of the creditors shall attend such 
meeting, either in person or by attorney, it shall be the duty of the assignee 
so to determine. In case a dividend is ordered, the register shall, within 
ten days after such meeting, prepare a list of creditors entitled to dividend, 
and shall calculate and set opposite to the name of each creditor who has 
proved his claim the dividend to which he is entitled out of the net pro- 
ceeds of the estate set apart for dividend, and shall forward by mail to 
every creditor a statement of the dividend to which he is entitled, and 
such creditor shall be paid by the assignee in such manner as the court 
may direct. 

Sect. 28. Relates to subsequent meetings of the creditors, divi- 
dends, compensation of assignee, and order of dividend and payment 
from bankrupt's estate. This section I give in full. 

Sect. 28. And be it further enacted, That the like proceedings shall be 
had at the expiration of the next three months, or earlier, if practicable, 
and a third meeting of creditors shall then be called by the court, and 
a final dividend then declared, unless any action at law or suit in equity 
be pending, or unless some other estate or effects of the debtor after- 
wards come to the hands of the assignee, in which case the assignee 
shall, as soon as may be, convert such estate or effects into money, and 
within two months after the same shall be so converted, the same shall be 
divided in manner aforesaid. Further dividends shall be made in like 
manner as often as occasion requires; and after the third meeting of cred- 
itors, no further meeting shall be called, unless ordered by the court. If 
at any time there shall be in the hands of the assignee any outstanding 
debts or other property, due or belonging to the estate, which cannot be 
collected and received by the assignee without unreasonable or inconvenient 
delay or expense, the assignee may, under the direction of the court, sell 
and assign such debts or other property in such manner as the court shall 
order. No dividend already declared shall be disturbed by reason of 
debts being subsequently proved ; but the creditors proving such debts 
shall be entitled to a dividend equal to those already received by the 
other creditors before any further payment is made to the latter. Pre- 
paratory to the final dividend, the assignee shall submit his account to the 
court, and file the same, and give notice to the creditors of such filing, 
and shall also give notice that he will apply for a settlement of his account, 
and for a discharge from all liability as assignee, at a time to be specified 
in such notice ; and at such time the court shall audit and pass the accounts 
of the assignee, and such assignee shall, if required by the court, be ex- 
amined as to the truth of such account, and, if found correct, he shall 
thereby be discharged from all liability as assignee to any creditor of the 



A CITIZEN OF THE UNITED STATES. 615 

bankrupt. The court shall thereupon order a dividend of the estate and 
effects, or of such part thereof as it sees fit, among such of the creditors 
as have proved their claims, in proportion to the respective amount of their 
said debts. In addition to all expenses necessarily incurred by him in the 
execution of his trust, in any case, the assignee shall be entitled to an 
allowance for his services in such case, on all moneys received and paid out 
by him therein, for any sum not exceeding one thousand dollars, five per 
centum thereon; for any larger sum, not exceeding five thousand dollars, 
two and a half per centum on the excess over one thousand dollars ; and 
for any larger sum, one per centum on the excess over five thousand dol- 
lars; and if, at anytime, there shall not be in his hands a sufficient amount 
of money to defray the necessary expenses required for the further execu- 
tion of his trust, he shall not be obliged to proceed therein until the neces- 
sary funds are advanced or satisfactorily secured to him. If, by accident, 
mistake, or other cause, without fault of the assignee, either or both of the 
said second and third meetings should not be held within the times limited, 
the court may, upon motion of an interested party, order such meetings, 
with like effect as to the validity of the proceedings as if the meeting had 
been duly held. In the order for a dividend, under this section, the fol- 
lowing claims shall be entitled to priority or preference, and to be first paid 
in full in the following order : — 

First, The fees, costs, and expenses of suits, and the several proceed- 
ings in bankruptcy under this act, and far the custody of property, as 
herein provided. 

Second, All debts due to the United States, and all taxes and assess- 
ments under the laws thereof. 

Third, All debts due to the State in which the proceedings in bank- 
ruptcy are pending, and all taxes and assessments made under the laws of 
auch State. 

Fourth, Wages due to any operative, clerk, or house-servant, to an 
amount not exceeding fifty dollars, for labor performed within six months 
next preceding the first publication of the notice of proceedings in bank- 
ruptcy. 

Fifth., All debts due to any persons who, by the laws of the United 
States, are or may be entitled to a priority or preference, in like man- 
ner as if this act had not been passed : Always provided, That nothing 
contained in this act shall interfere with the assessment and collection of 
taxes by the authority of the United States or any State. 

Sects. 29, 30, 31, 32, 33, and 34. Relate to the discharge of the 
bankrupt, and its effect. These sections I give in full. 

THE BANKRUPT'S DISCHARGE AND ITS EFFECT. 

Sect. 29. And be it further enacted, That at any time after the expira- 
tion of six months from the adjudication of bankruptcy, or if no debts 
have been proved against the bankrupt, or if no assets have come to the 
hands of the assignee, at any time after the expiration of sixty days, and 



616 THE PROPERTY RIGHTS OF 

■within one year from the adjudication of bankruptcy, the bankrupt may 
apply to the court for a discharge from his debts, and the court shall there- 
upon order notice to be given by mail to all creditors who have proved their 
debts, and by publication at least once a week in such newspapers as the 
court shall designate, due regard being had to the general circulation of 
the same in the district, or in that portion of the district in which the 
bankrupt and his creditors shall reside, to appear on a day appointed for 
that purpose, and show cause why a discharge should not be granted to the 
bankrupt. No discharge shall be granted, or. if granted, be valid, if the 
bankrupt has wilfully sworn falsely in his affidavit annexed to his petition, 
schedule, or inventory, or upon any examination in the course of the pro- 
ceedings in bankruptcy, in relation to any material fact concerning his 
estate or his debts, or to any other material fact ; or if he has concealed 
any part of his estate or effects, or any books or writings relating thereto, 
or if he has been guilty of any fraud or negligence in the care, custody, 
or delivery to the assignee of the property belonging to him at the time 
of the presentation of his petition and inventory, excepting such prop- 
erty as he is permitted to retain under the provisions of this act, or if 
he has caused, permitted, or suffered any loss, waste, or destruction 
thereof; or if, within four months before the commencement of such pro- 
ceedings, he has procured his lands, goods, money, or chattels to be 
attached, sequestered, or seized on execution; or if, since the passage of 
this act, he has destroyed, mutilated, altered, or falsified any of his 
books, documents, papers, writings, or securities, or has made or been 
privy to the making of any false or fraudulent entry in any book of ac- 
count or other document, with intent to defraud his creditors; or has 
removed or caused to be removed any part of his property from the dis- 
trict, with intent to defraud his creditors; or if he has given any fraud- 
ulent preference contrary to the provisions of this act, or made any 
fraudulent payment, gift, transfer, conveyance, or assignment of any part 
of his property, or has lost any part thereof in gaming, or has admitted a 
false or fictitious debt against his estate ; or if, having knowledge that any 
person has proved such false or fictitious debt, he has not disclosed the 
same to his assignee within one month after such knowledge; or if, being 
a merchant or tradesman, he has not, subsequently to the passage of this 
act, kept proper books of account; or if he, or any person in his behalf, 
has procured the assent of any creditor to the discharge, or influenced the 
action of any creditor at any stage of the proceedings, by any pecuniary 
consideration or obligation; or if he has, in contemplation of becoming 
bankrupt, made any pledge, payment, transfer, assignment, or conveyance 
of any part of his property, directly or indirectly, absolutely or condition- 
ally, for the purpose of preferring any creditor or person having a claim 
against him, or who is or may be under liability for him, or for the pur- 
pose of preventing the property from coming into the hands of the assignee, 
or of being distributed under this act in satisfaction of his debts; or if he 
has been convicted of any misdemeanor under this act, or has been guilty 
of any fraud whatever contrary to the true intent of this act; and befoie 
any discharge is granted, the bankrupt shall take and subscribe an oath to 
the effect that he has not done, suffered, or been privy to any act, matter. 



A CITIZEN OF THE UNITED STATES. 617 



or thing specified in this act as a ground for withholding such discharge, 
or as invalidating such discharge if granted. 

Sect. 30. And be it further enacted, That no person who shall have been 
discharged under this act, and shall afterwards become bankrupt, on his 
own application, shall be again entitled to a discharge whose estate is insuf- 
ficient to pay seventy per centum of the debts proved against it, unless the 
assent in writing of three-fourths in value of his creditors who have proved 
their claims is filed at or before the time of application for discharge ; but 
a bankrupt who shall prove to the satisfaction of the court that he has 
paid all the debts owing by him at the time of any previous bankruptcy, 
or who has been voluntarily released therefrom by his creditors, shall be 
entitled to a discharge in the same manner and with the same effect as if 
he had not previously been bankrupt. 

Sect. 31. And it is further enacted, That any creditor opposing the dis- 
charge of any bankruptcy may fie a specification in writing of the grounds 
of his opposition, and the court may, in its discretion, order any question of 
fact so presented to be tried at a stated session of the District Court. 

Sect. 32. And be it further enacted, That if it shall appear to the court 
that the bankrupt has in all things conformed to his duty under this act, 
and that he is entitled, under the provisions thereof, to receive a discharge, 
the court shall grant him a discharge from all his debts, except as herein- 
after provided, and shall give him a certificate thereof under the seal of the 
court, in substance as follows : — 

District Court of the United States. District of Whereas 

has been duly adjudged a bankrupt under the act of Congress establishing 
a uniform system of bankruptcy throughout the United States, and ap- 
pears to have conformed to all the requirements of law in that behalf, it is 
therefore ordered by the court that said be for ever discharged 

from all debts and claims which by said act are made provable against his 
estate, and which existed on the day of on which day 

the petition for adjudication was filed by (or against) him; excepting such 
debts, if any, as are by said act excepted from the operation of a discharge 
in bankruptcy. Given under my hand and the seal of the court at 
in the said district, this day of a.d. 

(Seal.) Judge. 

Sect. 33. And be it further enacted, That no debt created by the fraud or 
embezzlement of the bankrupt, or by his defalcation as a public officer, or 
while acting in any fiduciary character, shall be discharged under this act; 
but the debt may be proved, and the dividend thereon shall be a pay- 
ment on account of said debt; and no discharge granted under this act shall 
release, discharge, or affect any person liable for the same debt for or with 
the bankrupt, either as partner, joint contractor, indorser, surety, or other- 
wise. And in cases of voluntary bankruptcy, no discharge shall be granted 
to a debtor whose assets shall not be equal to thirty per centum of the 
claims proved against his estate, upon which he 6hall be liable as principal 
debtor, without the assent of at least one-fourth of his creditors in num- 
ber, and one-third in value. 



L 



618 THE PROPERTY RIGHTS OF 

Sect. 34. And be it further enacted, That a discharge duly granted 
under this act shall, with the exceptions aforesaid, release the bankrupt 
from all debts, claims, liabilities, and demands which were or might have 
been proved against his estate in bankruptcy, and may be pleaded, by a 
simple averment that on the day of its date such discharge was granted to 
him, setting the same forth in hcec verba, as a full and complete bar to all 
suits brought on any such debts, claims, liabilities, or demands, and the 
certificate shall be conclusive evidence in favor of such bankrupt of the fact 
and the regularity of such discharge: Always provided, That any creditor 
or creditors of said bankrupt, whose debt was proved or provable against 
the estate in bankruptcy, who shall see fit to contest the validity of said 
discharge on the ground that it was fraudulently obtained, may, at any 
time within [two years] after the date thereof, apply to the court which 
granted it to set aside and annul the same. Said application shall be in 
writing, shall specify which, in particular, of the several- acts mentioned in 
section twenty-nine it is intended to give evidence of against the bank- 
rupt, setting forth the grounds of avoidance, and no evidence shall be 
admitted as to any other of the said acts; but said application shall be 
subject to amendment at the discretion of the court. The court shall 
cause reasonable notice of said application to be given to said bankrupt, 
and order him to appear and answer the same, within such time as to the 
court shall seem fit and proper. If, upon the hearing of said parties, the 
court shall find that the fraudulent acts, or any of them, set forth as afore- 
said by said creditor or creditors against the bankrupt, are proved, and 
that said creditor or creditors had no knowledge of the same until after the 
granting of said discharge, judgment shall be given in favor of said creditor 
or creditors, and the discharge of said bankrupt shall be set aside and an- 
nulled. 

Sect 35. Relates to fraudulent conveyances or transfers by 
the bankrupt, declares them to be void, and defines what are such 
conveyances or transfers. This section I give in full. 



PREFERENCES AND FRAUDULENT CONVEYANCES DECLARED VOID. 

Sect. 35. And be it further enacted, That if any person being insolvent, 
or in contemplation of insolvency, within two months before the filing of 
the petition by or against him, with a view to give a preference to any 
creditor or person having a claim against him, or who is under any liability 
for him, procures any part of his property to be attached, sequestered, or 
seized on execution, or makes any payment, pledge, assignment, transfer, 
or conveyance of any part of his property, either directly or indirectly, 
absolutely or conditionally, the person receiving such payment, pledge, 
assignment, transfer, or conveyance, or to be benefited thereby, or by such 
attachment, having reasonable cause to believe such person is insolvent, and 
that such attachment, payment, pledge, assignment, or conveyance is made 
in fraud of the provisions of this act, the same shall be void, and the assignee 
may recover the property, or the value of it, from the person so receiving it, 



A CITIZEN OF THE UNITED STATES. 619 

01 so to be benefited ; and if any person being insolvent, or in contemplation 
of insolvency or bankruptcy, within three months before the filing of the 
petition by or against him, makes any payment, sale, assignment, transfer, 
conveyance, or other disposition of any part of his property to any person 
who then has reasonable cause to believe him to be insolvent, or to be act- 
ing in contemplation of insolvency, and that such payment, sale, assign- 
ment, transfer, or other conveyance, is made with a view to prevent his 
property from coming to his assignee in bankruptcy, or to prevent the 
same from being distributed under this act, or to defeat the object of, or 
in any way impair, hinder, impede, or delay the operation and effect of, or 
to evade any of the provisions of this act, the sale, assignment, transfer, 
or conveyance shall be void, and the assignee may recover the property, or 
the value thereof, as assets of the bankrupt. And if such sale, assignment, 
transfer, or conveyance is not made in the usual and ordinary course of 
business of the debtor, the fact shall be prima facte evidence of fraud. 
Any contract, covenant, or security made or given by a bankrupt or other 
person with, or in trust for, any creditor, for securing the payment of any 
money as a consideration for or with intent to induce the creditor to for- 
bear opposing the application for discharge of the bankrupt, shall be void; 
and if any creditor shall obtain any sum of money or other goods, chattels, 
or security from any person as an inducement for forbearing to oppose, or 
consenting to such application for discharge, every creditor so offending 
shall forfeit all right to any share or dividend in the estate of the bank- 
rupt, and shall also forfeit double the value or amount of such money, 
goods, chattels, or security so obtained, to be recovered by the assignee 
for the benefit of the estate. Nothing in this section thirty-five shall be 
construed to invalidate any loan of actual value, or the security therefor, 
made in good faith, upon a security taken in good faith on the occasion of 
the making of such loan. 

Sects. 36 and 37. Relate to the bankruptcy of partnerships or 

corporations, and apply to them the provisions of this act. 

Sect. 38. Provides that the filing of the petition for bank- 
ruptcy shall be taken as the beginning of the proceedings, and also 
for the taking of testimony by depositions. 

Sect. 39. Relates to what is called involuntary bankruptcy, 
or bankruptcy on the petition of a creditor. This section has been 
materially changed by statute of 1874. I give it in full, as it now 
stands. 

INVOLUNTARY BANKRUPTCY. 

Sect. 39. And be it further enacted, That any person residing and owing 
debts as aforesaid, who, after the passage of this act, shall depart from the 
State, district, or Territory, of which he is an inhabitant, with intent to 
defraud his creditors, or, being absent, shall, with such intent, remain ab- 
sent; or shall conceal himself to avoid the service of legal process in any 
action for the recovery of a debt or demand provable under this act; or shall 
conceal aud remove any of his property to avoid its being attached, taken, 



620 THE PROPERTY RIGHTS OF 

or sequestered on legal process; or. shall make any assignment, gift, sale, 
conveyance, or transfer of his estate, property, rights, or credits, either 
within the United States or elsewhere, with intent to delay, defraud, or 
hinder his creditors; or wli3 has been arrested and held in custody under 
or by virtue cf mesne process of execution, issued out of any court of any 
State, district, or Territory, within which such debtor resides or has prop- 
erty, founded upon a demand in its nature provable against a bankrupt's 
estate under this act, and for a sum exceeding one hundred dollars, and 
such process is remaining in force and not discharged by payment, or in 
any other manner provided by the law of such State, district, or Territory 
applicable thereto, for a period of twenty days; or has been actually im- 
prisoned for more than twenty days in a civil action, founded on contract, 
for the sum of one hundred dollars or upwards; or who, being bankrupt or 
insolvent, or in contemplation of bankruptcy or insolvency, shall make any 
payment, gift, grant, sale, conveyance, or transfer of money or other prop- 
erty, estate, rights, or credits, or give any warrant to confess judgment, or 
procure or suffer his property to be taken on legal process, with intent 
to give a preference to one or more of his creditors, or to any person 
or persons who are or may be liable for him as indorsers, bail, sureties, 
or otherwise, or with the intent, by such disposition of his property, to 
defeat or delay the operation of this act; or who, being a bank, banker, 
broker, merchant, trader, manufacturer, or miner, has fraudulently 
stopped payment ; or who, being a bank, banker, broker, merchant, 
trader, manufacturer, or miner, has stopped or suspended and not re- 
sumed payment, within a period of forty days, of his commercial paper 
(made or passed in the course of his business as such) ; or who, being 
a bank or banker, shall fail for forty days to pay any depositor upon de- 
mand of payment lawfully made, — shall be deemed to have committed an 
act of bankruptcy, and, subject to the conditions hereinafter prescribed, 
shall be adjudged a bankrupt on the petition of one or more of his credit- 
ors, who shall constitute one-fourth thereof, at least, in number, and the 
aggregate of whose debts provable under this act amounts to at least one- 
third of the debts so provable: Provided, That such petition is brought 
within six months after such act of bankruptcy shall have been committed. 
And the provisions of this section shall apply to all cases of compulsory 
or involuntary bankruptcy commenced since the first day of December, 
eighteen hundred and seventy- three, as well as to those commenced here- 
after. And in all cases commenced since the first day of December, 
eighteen hundred and seventy- three, and prior to the passage of this act, 
as well as those commenced hereafter, the court shall, if such allegation as 
to the number or amount of petitioning creditors be denied by the debtor, 
by a statement in writing to that effect, require him to file in court forth- 
with a full list of his creditors, with their places of residence and the sums 
due them respectively, and shall ascertain, upon reasonable notice to the 
creditors, whether one-fourth in number and one-third in amount thereof, 
as aforesaid, have petitioned that the debtor be adjudged a bankrupt. But 
if such debtor shall, on the filing of the petition, admit in writing that the 
requisite number and amount of creditors have petitioned, the court, if 
satisfied that the admission was made in good faith, shall so adjudge, which 



A CITIZEN OF THE UNITED STATES. 621 

judgment shall be final, and the matter proceed without further steps on 
that subject. And if it shall appear that such number and amount have not 
so petitioned, the court shall grant reasonable time, not exceeding, in cases 
heretofore commenced, twenty days, and, in cases hereafter commenced, 
ten days, within which other creditors may join in such petition. And if, 
at the expiration of such time so limited, the number and amount shall 
comply with the requirements of this section, the matter of bankruptcy 
may proceed ; but if, at the expiration of such limited time, such number 
and amount shall not answer the requirements of this section, the pro- 
ceedings shall be dismissed, and, in cases hereafter commenced, with costs. 
And if such person shall be adjudged a bankrupt, the assignee may recover 
back the money or property so paid, conveyed, sold, assigned, or trans- 
ferred contrary to this act : Provided, That the person receiving such pay- 
ment or conveyance had reasonable cause to believe that the debtor was 
insolvent, and knew that a fraud on this act was intended ; and such person, 
if a creditor, shall not, in cases of actual fraud on his part, be allowed to 
prove for more than a moiety of his debt ; and this limitation on the proof 
of debts shall apply to cases of voluntary as well as involuntary bankruptcy. 
And the petition of creditors under this section may be sufficiently verified 
by the oaths of the first five signers thereof, if so many there be. And if 
any of said first five signers shall not reside in the district in which such 
petition is to be filed, the same may be signed and verified by the oath or 
oaths of the attorney or attorneys, agent or agents, of such signers. And 
in computing the number of creditors, as aforesaid, who shall join in such 
petition, creditors whose respective debts do not exceed two hundred and 
fifty dollars shall not be reckoned. But if there be no creditors whose 
debts exceed said sum of two hundred and fifty dollars, or if the requisite 
number of creditors holding debts exceeding two hundred and fifty dollars 
fail to sign the petition, the creditors having debts of a less amount shall 
be reckoned for the purposes aforesaid. 

Sects. 40, 41, and 42. Regulate the proceedings under such a 
petition. 

Sect. 43. Relates to the superseding of the proceedings in bank- 
ruptcy, by placing the property in the hands of trustees, if three- 
fourths in value of the creditors desire it. This section I give in 
full. 



OF SUPERSEDING THE BANKRUPT PROCEEDINGS BY ARRANGEMENT. 

Sect. 43. And be it further enacted, That if at the first meeting of 
creditors, or at any meeting of creditors to be specially called for that pur- 
pose, and of which previous notice shall have been given for such length 
of time and i« such manner as the court may direct, three-fourths in value 
of the creditors whose claims have been proved shall determine and resolve 
that it is for the interest of the general body of the creditors that the 
estate of the bankrupt should be wound up and settled, and distribution 
made among the creditors by trustees, under the inspection and direction 



622 TEE PROPERTY RIGHTS OF 

of a committee of the creditors, it shall be lawful for the creditors to cer- 
tify and report such resolution to the court, and to nominate one or more 
trustees to take and hold and distribute the estate, under the direction of 
such committee. If it shall appear to the court, after hearing the bank- 
rupt and such creditors as may desire to be heard, that the resolution was 
duly passed and that the interests of the creditors will be promoted thereby 
it shall confirm the same; and upon the execution and filing, by or on be- 
half of three-fourths in value of all the creditors whose claims have been 
proved, of a consent that the estate of the bankrupt be wound up and set- 
tled by said trustees, according to the terms of such resolution, the bank- 
rupt, or his assignee in bankruptcy, if appointed, as the case may be, 
shall, under the direction of the court, and under oath, convey, transfer, 
and deliver all the property and estate of the bankrupt to the said trustee 
or trustees, who shall, upon such conveyance and transfer, have and hold 
the same in the same manner, and with the same powers and rights, in 
all respects, as the bankrupt would have had or held the same if no pro- 
ceedings in bankruptcy had been taken ; or as the assignee in bankruptcy 
would have done had such resolution not been passed; and such consent 
and the proceedings thereunder shall be as binding in all respects on any 
creditor whose debt is provable, who has not signed the same, as if he 
had signed it, and on any creditor whose debt, if provable, is not proved, 
as if he had proved it; and the court, by order, shall direct all acts and 
things needful to be done to carry into eifect such resolution of the credit- 
ors; and the said trustees shall proceed to wind up and settle the estate 
under the direction and inspection of such committee of the creditors, for 
the equal benefit of all such creditors, and the winding up and settlement 
of any estate under the provisions of this section shall be deemed to be 
proceedings in bankruptcy under this act; and the said trustees shall have 
all the rights and powers of assignees in bankruptcy. The court, on the 
application of such trustees, shall have power to summon and examine, on 
oath or otherwise, the bankrupt, and any creditor, and any person indebted 
to the estate, or known or suspected of having any of the estate in his pos- 
session, or any other person whose examination may be material or neces- 
sary to aid the trustees in the execution of their trust, and to compel the 
attendance of such persons and the production of books and papers in the 
same manner as in other proceedings in bankruptcy under this act; and 
the bankrupt shall have the like right to apply for and obtain a discharge 
after the passage of such resolution and the appointment of such trustees 
as if such resolution had not been passed, and as if all the proceedings had 
continued in the manner provided in the preceding sections of this act. If 
the resolution shall not be duly reported, or the consent of the creditors 
shall not be duly filed, or if, upon its filing, the court shall not think fit 
to approve thereof, the bankruptcy shall proceed as though no resolution 
had been passed, and the court may make all necessary orders for re- 
suming the proceedings. And the period of time which shall have elapsed 
between the date of the resolution and the date of the order for resuming 
the proceedings shall not be reckoned in calculating periods of time pre- 
scribed by this act. 



A CITIZEN OF THE UNITED STATES. 623 



COMPOSITION WITH CKEDITOBS. 

That in all cases of bankruptcy now pending, or to be hereafter pend- 
ing, by or against any person, whether an adjudication in bankruptcy shall 
have been had or not, the creditors of such alleged bankrupt may, at a 
meeting called under the direction of the court, and upon not less than 
ten days' notice to each known creditor of the time, place, and purpose 
of such meeting, such notice to be personal or otherwise, as the court 
may direct, resolve that a composition proposed by the debtor shall be 
accepted in satisfaction of the debts due to them from the debtor. And 
such resolution shall, to be operative, have been passed by a majority in 
number and three-fourths in value of the creditors of the debtor, assembled 
at such meeting either in person or by proxy, and shall be confirmed by the 
signatures thereto of the debtor and two-thirds in number and one-half in 
value of all the creditors of the debtor. And in calculating a majority for 
the purposes of a composition under this section, creditors whose debts 
amount to sums not exceeding fifty dollars shall be reckoned in the major- 
ity in value, but not in the majority in number; and the value of the debts 
of secured creditors above the amount of such security, to be determined 
by the court, shall, as nearly as circumstances admit, be estimated in the 
same way. And creditors whose debts are fully secured shall not be en- 
titled to vote upon or to sign such resolution without first relinquishing 
such security for the benefit of the estate. 

The debtor, unless prevented by sickness or other cause satisfactory 
to such meeting, shall be present at the same, and shall answer any in- 
quiries made of him; and he, or, if he is so prevented from being at 
such meeting, some one in his behalf, shall produce to the meeting a 
statement showing the whole of his assets and debts, and the names and 
addresses of the creditors to whom such debts respectively are due. 

Such resolution, together with the statement of the debtor as to his 
assets and debts, shall be presented to the court; and the court shall, upon 
notice to all the creditors of the debtor of not less than five days, and upon 
hearing, inquire whether such resolution has been passed in the manner 
directed by this section; and if satisfied that it has been so passed, it shall, 
subject to the provisions hereinafter contained, and upon being satisfied 
that the same is for the best interest of all concerned, cause such resolution 
to be recorded, and statement of assets and debts to be filed; and until such 
record and filing shall have taken place, such resolution shall be of no val- 
idity. And any creditor of the debtor may inspect such record and state- 
ment at all reasonable times. 

The creditors may, by resolution passed in the manner and under the 
circumstances aforesaid, add to or vary the provisions of any composition 
previously accepted by them, without prejudice to any persons taking inter- 
ests under such provisions, w r ho do not assent to such addition or variation. 
And any such additional resolution shall be presented to the court in the 
same manner, and proceeded with in the same way, and with the same con- 
sequences, as the resolution by which the composition was accepted in the 
first instance. The provisions of a composition accepted by such resolu- 



624 THE PROPERTY RIGHTS OF 

tion in pursuance of this section, shall be binding on all the creditors whose 
names and addresses, and the amounts of the debts due to whom, are shown 
in the statement of the debtor produced at the meeting at which the reso- 
lution shall have been passed, but shall not affect or prejudice the rights of 
any other creditors. 

Where a debt arises on a bill of exchange or promissory note, if the 
debtor shall be ignorant of the holder of any such bill of exchange or 
promissory note, he shall be required to state the amount of such bill or 
note, the date on which it falls due, the name of the acceptor and of the 
person to whom it is payable, and any other particulars within his knowl- 
edge respecting the same ; and the insertion of such particulars shall be 
deemed a sufficient description by the debtor in respect to such debt. 

Any mistake made inadvertently by a debtor in the statement of his 
debts may be corrected upon reasonable notice, and with the consent of a 
general meeting of his creditors. 

Every such composition shall, subject to priorities declared in said act, 
provide for a pro rata payment or satisfaction, in money, to the creditors 
of such debtor, in proportion to the amount of their unsecured debts, or 
their debts in respect to which any such security shall have been duly sur- 
rendered and given up. 

The provisions of any composition made in pursuance of this section 
may be enforced by the court, on motion made in a summary manner by 
any person interested, and on reasonable notice; and any disobedience of 
the order of the court made on such motion shall be deemed to be a con- 
tempt of court. Rules and regulations of court may be made in relation 
to proceedings of composition herein provided for, in the same manner and 
to the same extent as now provided by law in relation to proceedings in 
bankruptcy. 

If it shall at any time appear to the court, on notice, satisfactory evi- 
dence, and hearing, that a composition under this section cannot, in conse- 
quence of legal difficulties, or for any sufficient cause, proceed without 
injustice or undue delay to the creditors or to the debtor, the court may 
refuse to accept and confirm such composition, or may set the same aside; 
and, in either case, the debtor shall be proceeded with as a bankrupt, 
in conformity with the provisions of law, and proceedings may be had 
accordingly; and the time during which such composition shall have been 
in force shall not, in such case, be computed in calculating periods of time 
prescribed by said act. 

Sect. 44. Provides that debtors, who, after the commencement of 

proceedings in bankruptcy (which means the filing of the petition), 
fraudulently conceal any property, or hinder the assignee from get- 
ting hold of it, or spend any part of it in gaming, or, within three 
months next before the petition, dispose of any property otherwise 
than by honest transactions in his trade, which property was bought 
on credit and is unpaid for, shall be punished by imprisonment not 
exceeding three years. 



A CITIZEN OF THE UNITED STATES. 625 

Sect. 45. Provides that defaulting officers shall be punished by a 
fine not less than three hundred nor more than five hundred dol- 
lars, and imprisonment not more than three years. 

Sect. 46. Provides that forgery or counterfeiting of any court 
seal, any court paper, or the tendering for use of any document so 
forged or counterfeited, shall be punished by a fine not less than 
five hundred nor more than five thousand dollars, and imprisonment 
not exceeding five years. 

Sect. 47. Relates to fees and costs of proceedings ; and the act of 
22 June, 1874, provided that the fees, commissions, charges, &c, 
shall be reduced to one-half of those heretofore allowed, until the 
Supreme Court of the United States shall make new orders and 
regulations about them. 

Sect. 48. Gives the meaning and definition of sundry words used 
in the act. 

Sect. 49. Gives jurisdiction in cases of bankruptcy to the Supreme 
Court of the District of Columbia and of the several Territories, when 
the bankrupt resides therein. 

Sect. 50. Declares that the act goes into force when approved. 

The various forms required are not given here, because they have 

been issued on the authority of the Supreme Court of the United 
States, and are uniform throughout the States, and are supplied by 
the registers of bankruptcy to every applicant ; and to one of them 
every person proposing to become a bankrupt, and every person 
desiring to bring another person into bankruptcy, must apply. 



CHAPTER XXYI. 

LIMITATIONS. 

SECTION I. 
THE STATUTE OF LIMITATIONS. 

All of our States have what is called a statute of limitations. 

It is not exactly the same everywhere; but generally it enacts 
that all actions of account, and all which are brought for indebted- 
ness or damages, and all actions of debt grounded upon any lending, 
or contract without seal, and all actions for arrearages of rent, shall 

40 



626 THE PROPERTY RIGHTS OF 

be commenced and sued within six years next after the cause of such 
actions or suit arises, and not after. In few words, all claims which 
do not rest on a seal or a judgment must be sued within six years 
from the time when they arise. If they rest on a seal or a judg- 
ment, they can usually be sued at any time within twenty years. 

In some States, a statute provides, in substance, that if a debt 
or promise be once barred by the statute of limitations, no acknowl- 
edgment of the debt or new promise shall renew the debt and take 
away the effect of the statute, unless the new promise is in writing, 
and is signed by the party who makes the promise. But this 
statute expressly permits a part-payment either of principal or inter- 
est of the old debt to have the same effect as a new promise. And 
this statute also provides that if there be joint contractors or debt- 
ors, and a plaintiff is barred by the statute against both, but the bar 
of the statute is removed as to one by a new promise or otherwise, 
the plaintiff may have judgment against this one, but not against 
the other. 

Such statutes have been passed in Maine, Massachusetts, Ver- 
mont, New York, Indiana, Michigan, Arkansas, and California. 



SECTION n. 

CONSTRUCTION OF THE STATUTE. 

For the law of limitation there is a twofold foundation: in 

the first place, the actual probability that a debt which has not been 
claimed for a long time was paid, and that this is the reason of the 
silence of the creditor. But, besides this reason, there is the inex- 
pediency and injustice of permitting a stale and neglected claim or 
debt, even if it has not been paid, to be set up and enforced after a 
long silence and acquiescence. 

Before inquiring into the rules of law which now apply to 
the case of an acknowledgment or new promise, it should be re- 
marked that a prescription, or limitation, of common law, much more 
ancient than the statutes above quoted, is still in full force. This is 
the presumption of payment after twenty years, which is applicable 
to all debts : not only the simple contracts to which the statutes of 
limitation refer, that is, contracts which are merely oral, or which 
if written have no seal, but to specialties, or contracts or debts 
under seal or by judgment of court. Of these it will not be neces- 
sary to speak here, excepting to remark that in a few of our States 
the statute of limitation excepts a promissory note which is signed 
in the presence of an attesting witness, and is put in suit by the 
original payee, or his executor or administrator ; such a note in 



A CITIZEN OF THE UNITED STATES. 627 

those States, as in Maine and Massachusetts, may be sued any time 
within twenty years after it is due. Bank-bills and other evidences 
of debt issued by banks, are everywhere excepted from the operation 
of the statute of limitations. 



SECTION m. 
THE NEW PROMISE. 

In those States which do not require that the new promise 

should be in writing, any new promise, although merely oral, takes 
the case out of the statute. But many questions have arisen as to 
what this new promise must be. A mere acknowledgment, which 
does not contain, by any reasonable implication or construction, a 
new promise, is not sufficient, and still less so if it expressly excludes 
a new promise. In the leading American case upon this point, before 
the Supreme Court of the United States, it was proved, in answer to 
the plea of the statute of limitations, that the defendant, one of the 
partners of a firm then dissolved, said to the plaintiff, " I know we 
are owing you ; " "I am getting old, and I wish to have the business 
settled : " it was held that these expressions were insufficient to revive 
the debt. So, in New Hampshire, in an action on a promissory note, 
the defendant, on being asked to pay the note, said, "he guessed the 
note was outlawed; but that would make no difference,' he was will- 
ing to pay his honest debts always." As he did not state in direct 
terms that he was willing to pay the note, this was held not suffi- 
cient -to revive the debt. A new promise is not now implied by the 
law itself, from a mere acknowledgment. 

The new promise need not define the amount of the debt. That 
can be done by other evidence, if only the existence of the debt and 
the purpose of paying it are acknowledged. Still, the new promise 
must be of the specific debt, or must distinctly include it ; for if 
wholly general and undefined, it is not enough. A testator who 
provides for the payment of his debts generally, does not thereby 
make a new promise as to any one of them. 

If the new promise is conditional, the party relying upon it must 
be prepared to show that the condition has been fulfilled. Thus, if 
the new promise be to pay " when I am able," the promisee must 
prove not only the promise, but that the promisor is able to pay the 
debt. 

As the acknowledgment should be voluntary, it follows that one 
made under process of law, as by a bankrupt, or by answers to inter- 
rogatories which could not be avoided, should never have the effect 
of a now promise. 



528 THE PROPERTY RIGHTS OF 



SECTION IV. 
PART-PAYMENT. 

A part-payment of a debt is such a recognition of it as implies a 

new promise ; even if it was made in goods or chattels, if they were 
offered as payment and agreed to be received as payment, or by 
negotiable promissory note or bill. Thus, in a case where one was 
sued for money due for a quantity of hay, and pleaded that it had 
been due more than six years, which was a good defence, the 
plaintiff proved in reply that defendant had given him within six 
years a gallon of gin as part-payment for his debt ; and it was 
held that this took the case out of the statute of limitations, and 
the plaintiff recovered. But a payment has this effect only when 
the payment is made as of a part of a debt. If it is made in set- 
tlement of the whole, of course it is no promise of more. And 
a bare payment, without words or acts to indicate its character 
as a part-payment, would not be construed as carrying with it an 
acknowledgment that more was due and would be paid. 

If a debtor owes several debts, and pays a sum of money, he has 
the right of appropriating that money to one debt or another as he 
pleases. If he pays it without indicating his own appropriation, the 
general rule is, that the creditor who receives the money may ap- 
propriate it as he will. There is, however, this exception : if there 
be two or more debts, some of which are barred by the statute, and 
others are not barred by it, the creditor cannot appropriate the pay- 
ment to a debt that is barred, for the purpose of taking it out of the 
statute by such part-payment. (See Section 2 of Chapter XVI.) 



SECTION V. 
SOME STATUTORY EXCEPTIONS. 

The original English statute of limitation, which those in this 
country are taken from, also provides that if a creditor, at the time 
when the cause of action accrues, is a minor, or a married woman, 
or not of sound mind, or imprisoned, or beyond the seas, the six 
years do not begin to run ; and he may bring his action at any 
time within six years after such disability ceases to exist. And, 
also, if any person against whom there shall be a cause of action, 
shall, when such cause accrues, be beyond the seas (which means 
out of the country, and here, out of the State), the action may 
be brought at any time within six years after his return. Sim- 
ilar exceptions and disabilities are usually contained in our own 
statutes. 



A CITIZEN OF THE UNITED STATES. 629 

The effect of these is, that the disability must exist when the 
debt accrued ; and then, so long as the disability continues to exist, 
the statute does not take effect. But it is a general rule that, if the 
six years begin to run, they go on without any interruption or sus- 
pension from any subsequent disability. Thus, if a creditor be of 
sound mind, or a debtor be at home, when the debt accrues, and 
one month afterwards the creditor becomes insane, or the debtor 
leaves the country, nevertheless the six years go on, and after the 
end of that time no action can be commenced for the debt. Or if 
the disability exists when the debt accrues, and some months after- 
wards ceases, so that the six years begin to run when it ceases, and 
afterwards the disability comes again, it does not interrupt the six 
years. 

The effect of this is, that if) when a debt is due, the debtor is 
out of the State, the six years do not begin to run. If afterwards 
he returns to the State, they then begin to run ; and, having 
begun, they continue to run, although he goes out of the State 
again, and returns no more. 

In this country, a rational construction has been given to the 
disability of being out of the State, and its removal ; and it is not 
understood to be terminated merely by a return of the debtor for 
a few days, if during those days he was not within reach. If, 
however, the creditor knew that he had returned, or might have 
known it by the exercise of reasonable care and diligence, soon 
enough to have profited by it, this removal of the disability brings 
the statute into operation, although the return was for a short time 
only. 

SECTION VL 
WHEN THE PERIOD OF LIMITATION BEGINS. 

It is sometimes a question from what point of time the six years 

are to be counted. And the general rule is, that they begin when 
the action might have been commenced. If a credit is given, this 
period does not begin until the credit has expired. If a note on 
time be given, the six years do not begin until the time has expired, 
including the additional three days of grace. If a bill of exchange 
be given, payable at sight, then the six years begin after present- 
ment and demand ; but; if a note be payable on demand, or money 
is payable on demand, then the limitation begins at once, because 
there may be an action at once. If there can be no action until a 
previous demand, the limitation begins as soon as the demand is 
made. If money be payable on the happening of any event, then 



630 THE PROPERTY RIGHTS OF 

the limitation begins when that event has happened. If several 
successive credits are given, as if a note is given which is to be 
renewed ; or if a credit is given, and then a note is to be given ; 
or if the credit is longer or shorter at the purchaser's option, as if 
it be agreed that a note shall be given at two or four months, — 
then the six years begin when the whole credit or the longer credit 
has expired. 

SECTION vn. 
THE STATUTE DOES NOT AFFECT COLLATERAL SECURITY, 

It is important to remember that the statute of limitations does 
not avoid or cancel the debt, but only provides .that "no action 
shall be maintained upon it " after a given time. Therefore, it does 
not follow that no right can be sustained by the debt, although the 
debt cannot be sued. Thus, if one who holds a common note of 
hand, on which there is a mortgage or pledge of real or of personal 
property, without valid excuse neglects to sue the note for more 
than six years, he can never bring an action upon that note ; but 
the pledge or mortgage is as valid and effectual as it was before ; 
and, as far as it goes, his debt is secure ; and for the purpose of 
realizing this security, by foreclosing a mortgage, for example, he 
may have whatever process is necessary, although he cannot sue the 
note itself. And the debtor cannot redeem the property pledged or 
mortgaged except by payment of the debt. 



CHAPTER XXVIL 
INTEREST AND USURY. 

SECTION I. 
WHAT INTEREST IS, AND WHEN IT IS DUE. 

Interest means a payment of money for the use of money. In 

most civilized countries the law regulates this ; that is, it declares 
how much money may be paid or received for the use of money ; 
and this is called legal interest ; and if more is paid or agreed to 
be paid than is thus allowed, it is called usurious interest. By 
interest is commonly meant legal interest ; and by usury, usurious 
interest. 



A CITIZEN OF THE UNITED STATES. 631 

Interest may be due, and may be demanded by a creditor, on 

either of two grounds. One, a bargain to that effect; the other, by 
way of damages for withholding money that is due. Indeed, it may 
be considered as now the settled rule, that wherever money is with- 
held which is certainly due, the debtor is to be regarded as having 
promised legal interest for the delay. And upon this implication, 
as on most others, the usage of trade, and the customary course of 
dealings between the parties, would have great influence. 

Thus, in New York, it was held that, where it was known to 
one party that it was the uniform custom of the other to charge in- 
terest upon articles sold or manufactured by him after a certain time, 
the latter was allowed to charge interest accordingly. 

In general, we may say that interest is allowed by law as 
follows : on a debt due by judgment of court, it is allowed from the 
rendition of judgment ; and on an account that has been liquidated, 
or the balance ascertained, from the day of the liquidation ; for 
goods sold, from the time of the sale, if there be no credit, and if 
there be, then from the day when the credit expires ; for rent, from 
the time that it is due, and this even if the rent is payable otherwise 
than in money, but is not so paid ; for money paid for another or 
lent to another, it begins from the payment or loan. 

Interest is not generally recoverable upon claims for unliqui- 
dated damages, nor in actions founded on tort. By unliquidated 
damages is meant damages not agreed on, and of an uncertain 
amount, and which the jury must determine. By torts is meant 
wrongs, or injuries inflicted. But although interest cannot be given 
under that name, in actions of this sort, juries are sometimes at 
liberty to consider it in estimating the damages. 

It sometimes happens that money is due, but not now pay- 
able ; and then the interest does not begin until the money is 
payable. As if a note be on demand, the money is always due, but 
it is not payable until demand ; and therefore is not on interest 
until demand. But a note payable at a certain time, or after a 
certain period, carries interest from that time, whether it be de- 
manded or not. 

The laws which regulate interest and prohibit usury are very 
various, and are not perhaps precisely the same in any two of our 
States. Formerly usury was looked upon as so great an offence* 
that the whole debt was forfeited thereby. The law now, however, 
is — generally, at least — much more lenient. The theory that 
money is like any merchandise, worth what it will bring and no 
more, and that its value should be left to fix itself in a free market, 
appears to be gaining ground. In many States there are frequent 
efforts so to change the statutes of usury that parties may make any 



68'2 THE PROPERTY RIGHTS OF 

bargain for the use of money which suits them ; but when they make 
no bargain, the law shall say what is legal interest. And, generally, 
the forfeiture is now much less than the whole debt. 

At the close of this chapter will be found a statement of the 
usury laws of the States. 

There is no especial form or expression necessary to make a 
bargain usurious. It is enough for this purpose if there be a sub- 
stantial payment, or promise of payment, of more than the law 
allows, either for the use of money lent, or for the forbearance of 
money due and payable. One thing, however, is certain: there 
must be a usurious intention, or there is no usury. That is, if one 
miscalculates, and so receives a promise for more than legal interest, 
the error may be corrected, the excess waived, and the whole legal 
interest claimed. But if one makes a bargain for more than legal 
interest, believing that he has a right to make such a bargain, or 
that the law gives him all that he claims, this is a mistake of law, 
and does not save the party from the effect of usury. 

It may he well to remark, that the law makes a very wide 
distinction between a mistake of fact and a mistake of law. Gen- 
erally, it will not permit a party to.be hurt by a mistake of fact ; but 
it seldom suffers any one to excuse himself by a mistake of law, be- 
cause it holds that everybody should know the law, and because it 
would be dangerous to permit ignorance of the law to operate for 
any one's benefit. 

The question has been very much discussed, whether the use 
of the common tables, which are calculated on the supposition that 
a year consists of 365 days, is usurious. In New York, it has been 
held that it is ; but in Massachusetts, and some other States, it is 
held that the use of such tables does not render the transaction 
usurious. We think this latter the better opinion. 

If a debtor requests time, and promises to pay for the for- 
bearance legal interest, and as much more as the creditor shall 
be obliged to pay for the same money, this is not a usurious con- 
tract. And, even if usurious interest be actually taken, this, al- 
though strong evidence of an original usurious bargain and intent, 
is not conclusive, but may be rebutted by adequate proof or expla- 
nation. 

When a statute provides that a usurious contract is wholly 
void, such a contract cannot become good afterwards ; and therefore 
a note which is usurious, if it be therefore void by law in its incep- 
tion, is not valid in the hands of an innocent indorsee. But it is 
otherwise where the statute does not declare the contract void on 
account of the usury. If a note, or any securities for a usurious 
bargain, be delivered up by the creditor and cancelled, and the 



A CITIZEN OF THE UNITED STATES. 633 

debtor thereupon promises to pay the original debt and lawful in- 
terest, this promise is valid. 

New securities for old ones which are tainted with usury are 
equally void with the old ones, or subject to the same defence. Not 
so, however, if the usurious part of the original securities be ex- 
punged, and not included in the new; or if the new ones are given 
to third parties, who were wholly innocent of the original usurious 
transaction. And if a debtor suffers his usurious debt to be sued, 
and a judgment recovered against him for the whole amount, it is 
then too late for him to take any advantage of the usury. 

So, if land or goods be mortgaged to secure a usurious debt, 
and afterwards conveyed to an innocent party, subject to such mort- 
gage, the latter cannot set up the defence of usury, and thereby 
defeat an action to enforce the mortgage. 

Usurers resort to many devices to conceal their usury; and 
sometimes it is very difficult for the law to reach and punish this 
offence. A common method is for the lender of money to sell some 
chattel, or a parcel of goods, at a high price, the borrower paying this 
price in part as a premium for the loan. In England, it would seem 
from the reports to be quite common for one who discounts a note 
to make the discount nominally at legal rates, but to furnish a part 
of the amount in goods at a very high valuation. In all cases of this 
kind, or rather in all cases where questions of this kind arise, the 
court endeavors to ascertain the real character of the transaction. 
Such a transaction is always suspicious, for the obvious reason that 
one who wants to borrow money is not very likely to desire at the 
same time to buy goods at a high price. But the jury decide all 
questions of this kind ; and it is their duty to judge of the actual in- 
tention of the parties from all the evidence offered. If that intention 
is substantially that one should loan his money to another, who shall 
therefor, in any manner whatever, pay to the lender more than legal 
interest, it is a case of usury. " Where the real truth is a loan of 
money," said Lord Mansfield, " the wit of man cannot find a shift to 
take it out of the statute." If this great judge meant only that, 
whenever legal evidence shows the transaction to be a usurious loan, 
the law pays no respect whatever to any pretence or disguise, this 
is certainly true. But the wit of man does undoubtedly devise many 
" shifts," which the law cannot detect. There seems to be a general 
rule in these cases in reference to the burden of proof; the borrower 
must first show that he took the goods on compulsion ; and then it 
is for the lender to prove that no more than their actual value was 
received or charged for them. 

If one should borrow stock at a valuation much above the 
market rate, and agree to pay interest on this value for the use of 
the stock to sell or pledge, this would be usurious. 



634 THE PROPERTY RIGHTS OF 

One may lend his stock, and may, without usury, give the bor- 
rower the option to replace the stock, or to pay for it at even a high 
value, with interest. But, if he reserves this option to himself, the 
bargain is usurious, because it gives the lender the right to claim 
more than legal interest. So, the lender may reserve either the 
dividends or the interest, if he elects at the time of the loan ; but 
he cannot reserve the right of electing at a future time, when he 
shall know what the dividends are. 

A contract may seem to be two, and yet be but one, if the seem- 
ing two are but parts of a whole. Thus, if A borrows one thousand 
dollars, and gives a note promising to pay legal interest for it, and 
then gives another note for (or otherwise promises to pay) a further 
sum, in fact for no consideration but the loan, this is all one trans- 
action, and it constitutes a usurious contract. 

If, after a payment has been made, which discharged all legal 
obligation, the payer voluntarily adds a gift, this would not be 
usurious. And if there be a loan on legal terms, with no promise 
or obligation on the part of the borrower to pay any more, this might 
not be invalidated by a mere understanding that the borrower should, 
when the money was paid by him, make a present to the lender 
foi the accommodation. But in every such case the question for a 
jury is, What was this additional transfer of money, in fact; was it 
a voluntary gift, or was it the payment of a debt ? If an honest gift, 
it was not usurious ; if a payment, it was usurious. 

A foreign contract, valid and lawful where made, may be 
enforced in a State in which such a contract, if made there, would 
be usurious. But if usurious where it was made, and, by reason of 
that usury, wholly void in that State, if it is put in suit in another 
State where the penalty for usury is less, it cannot be enforced under 
this mitigated penalty ; but it is wholly void there also. 

SECTION II. 
A CHARGE FOR RISK OR FOR SERVICE. 

It is undoubtedly lawful for a lender to charge an extra price 

for the risk he incurs, provided that risk be perfectly distinct and 
different from the merely personal risk of the debtor's being unable 
to pay. If any thing is paid for this last risk, it is certainly usury. 

So, one may charge for services rendered, for brokerage, or for 
rate of exchange, and may even cause a domestic loan or discount 
to be actually converted into a foreign one, so as to charge the 
exchange; and this would not be usurious. But here, as before, and 
indeed throughout the law of usury, it is necessary to remember 



A CITIZEN OF THE UNITED STATES. 635 

that the actual intention, and not the apparent purpose or form 
of the transaction, must determine its character. So, if one lends 
money to be used in business, and lends it upon such terms that 
he becomes a partner in fact with those who use it, taking his 
.share of the profits, and becoming liable for the losses, this is not 
usurious. 

So, if one enters into a partnership, and provides money for its 
business, and the other party is to bear all the losses, and also to 
pay the capitalist more than legal interest as his share of the profits, 
this is not usurious, because there is no loan, if there be in fact a 
partnership ; for then there is a very important risk, as he becomes 
liable for all the debts of the partnership. 

The banks always get more than legal interest by their way 
of discounting notes and deducting the whole interest from the 
amount they give. This is perfectly obvious if we take an extreme 
case ; as if a bank discounted a note of a thousand dollars at fifteen 
years, in Massachusetts, when the legal interest was six per cent, 
the bank would discount the interest of all the fifteen years ; the 
borrower would receive one hundred dollars, and at the end of 
fifteen years he would pay back one thousand dollars, which is 
equivalent to paying nine hundred dollars for the use of one hun- 
dred for fifteen years, whereas the legal interest would be but 
ninety dollars. But this method is now established by usage and 
sanctioned by law. It should, however, be confined to discounts 
of negotiable paper, not having a very long time to run. For the 
rule is founded upon usage, and the usage goes no further. 



SECTION ni. 

THE SALE OF NOTES. 

There are, perhaps, no questions in relation to interest and 
usury of more importance than those which arise from the sale of 
notes or other securities. In the first place, there is no doubt what- 
ever that the owner of a note has as good a right to sell it for the 
most he can get, as he has to sell any goods or wares which he 
owns. There is here no question of usury, because there is no loan 
of money nor forbearance of debt. But, on the other hand, it is quite 
as certain that if any person makes his own note, and sells that for 
what he can get, this, while in appearance the sale of a note, is in 
fact the giving of a note for money. It is a loan and a borrowing, 
and nothing else. And if the apparent sale be for such a price that 
the seller pays more than legal interest, or, in other words, if the 
note bear interest and is sold for less than its face, or is not on 



636 TEE PROPERTY RIGHTS OF 

interest, and more than interest is discounted, it is a usurious trans- 
action. Supposing these two rules to be settled, the question in 
each case is, Under which of them does that case come, or to which 
of them does it draw nearest? 

We are not aware of any general principle so likely to be of 
use in determining these questions as this : if the seller of a note 
acquired it by purchase, or if it is his for money advanced or lent 
by him to its full amount, he may sell it for what he can get ; but 
if he be the maker of the note, or the agent of the" maker, and 
receives for the note less than would be paid him if a lawful 
discount were made, it is a usurious loan. In other words, the first 
holder of a note (and the maker of a note is not and cannot be its 
first holder) must pay to the maker the face of the note, or its full 
amount. And after paying this, he may sell it, and any subsequent 
purchaser may sell it, as merchandise. The same rule must apply 
to corporations, and all other bodies or persons who issue their notes 
or bonds on interest. If sold by brokers for them, for less than 
the full amount, it is usurious. Nor can such notes come into the 
market free from the taint and the defence of usury, unless the first 
party who holds them pays for them their full value. 

But then comes another question. If a note be offered for sale, 
and be sold for less than its face, and the purchaser supposes him- 
self to buy it from an actual holder and not from the maker, can 
the maker interpose the defence that it was actually usurious, on 
the ground that the seller was only his agent ? I should say that 
he could not ; that there can be no usury unless this is intended ; 
and that the guilty intention of one party cannot affect another 
party who was innocent. 

I should say, also, that one who, having no interest in a note, 
indorses or guarantees it for a certain premium, will be liable for the 
amount it promises ; he does not now add his credit to the value of 
his property and sell both together, as where he indorses a note 
which he holds himself, but sells his credit alone. This transaction 
I should not think usurious. And if it was open to no other defence, 
as fraud, for example, and was in fact what it purported to be, and 
not a mere cover for a usurious loan, we know no good reason why 
such indorser or guarantor should not be held liable to the full 
amount of his promise. 



A CITIZEN OF THE UNITED STATES. 637 



SECTION IV. 
COMPOUND INTEREST. 

Compound interest is sometimes said to be usurious; but it is 
not so ; and even those cases which speak of it as " savoring of 
usury " may be thought to go too far, unless every hard bargain for 
money is usurious. As the authorities now stand, however, a con- 
tract or promise to pay money with compound interest cannot, gen- 
erally, be enforced. On the other hand, it is neither wholly void, 
nor attended with any penalty, as it would be if usurious ; but is 
valid for the principal and simple interest only. 

Nevertheless, compound interest is sometimes recognized as due 
by courts of law, as well as of equity ; and sometimes, too, by its 
own name. Thus, if a trustee be proved to have had the money of 
the party for whom he is trustee (who is called in law his cestui que 
trust) for a long time without accounting for it, he may be charged 
with the whole amount, reckoned at compound interest, so as to 
cover his unlawful profits. If compound interest has accrued under 
a bargain for it, and been actually paid, it cannot be recovered back, 
as money usuriously paid may be. And if accounts are agreed to 
be settled by annual rests, which is in fact compound interest, or 
are actually settled so in good faith, the law sanctions this. Some- 
times, in cases of disputed accounts, the courts direct this method 
of settlement. 

Where money due on interest has been paid by sundry instal- 
ments, the mode of adjusting the amount which has the best 
authority, and the prevailing usage in its favor, seems to be this : 
Compute the interest due on the principal sum at the time when a 
payment, either alone or in conjunction with preceding payments, 
shall equal or exceed the interest due on the principal. Deduct 
this sum, and upon the balance cast interest as before, until a pay- 
ment or payments equal the interest due ; then deduct again, and 
so on. 

ABSTRACTS OF THE USURY LAWS OF THE STATES. 

These laws are stated from the latest information ; but are con- 
stantly undergoing change, and are likely to be so, until restrictions 
upon interest are abolished, as they now are in some States. 

Alabama. — Legal interest, eight per cent. Usurious interest cannot 
be recovered, and, if paid, is to be deducted from the principal. 

Arkansas. — Legal interest, six per cent. Parties may agree, by con- 
tract, written or verbal, for whatever amount they will. 



(538 THE PROPERTY RIGHTS OF 

California. — Legal interest, seven per cent. Ten per cent on 
money overdue on any written instrument. 

Connecticut. — Legal interest, seven per cent. Any person or cor- 
poration taking more than seven per cent forfeits the value so taken to 
any person who sues therefor within one year thereafter, and prosecutes 
his suit to effect. Contracts to pay taxes on the sum loaned, or insur- 
ance upon estate mortgaged to secure the same, not usurious. 

District of Columbia. — Legal interest, six per cent. Ten per 
cent may be paid on agreement. Any excess forfeits the whole interest. 

Delaware. — Legal interest, six per cent. Penalty for taking more, 
—forfeiture of the money lent; half to the prosecutor, half to the State. 

Florida. — Legal interest, six per cent. But the usury laws are ex- 
pressly abolished. 

Georgia. — Legal interest, seven per cent. More than legal interest 
cannot be recovered. All titles to property made as part of a usurious 
contract are void. 

Illinois. — Legal interest, six per cent. Parties may agree upon ten 
per cent orally or in writing. If more is agreed on or is taken, only the 
principal can be recovered. 

Indiana. — Legal interest, six per cent. Ten per cent may be agreed 
upon in writing. It may be taken in advance. Excess cannot be re- 
covered, and, if paid, shall be considered as paid on account of the 
principal. 

Iowa. — Legal interest, six per cent. Parties may agree in writing 
for ten per cent. If contract be for more, the creditor recovers only the 
principal, and interest at ten per cent is forfeited to the State. 

Kansas. — Legal interest, seven per cent. Parties may stipulate for 
any rate not exceeding twelve per cent. Contract for more forfeits all 
interest. Usurious payments held to be made on account of principal. 

Kentucky. — Legal interest, six per cent. Extra interest forfeited; 
if paid, may be recovered back. 

Louisiana. — Legal interest, five per cent. Conventional interest 
shall in no case exceed eight per cent, under penalty of forfeiture of 
entire interest. Owner of negotiable paper discounted for more than eight 
per cent may recover eight per cent. Usurious interest may be recovered 
back, but must be sued for within twelve months. 

Maine. — Legal interest, six per cent., in the absence of any agreement 
in writing. No bank can take a greater interest, unless by agreement in 
writing ; but in discounting negotiable securities payable at another place, 
the bank may charge in addition the existing rate of exchange between the 
places of payment and of discount. 

Maryland. — Legal interest, six per cent. Excess forfeited. 

Massachusetts. — Legal interest, six per cent. Any rate of interest 
or discount may be made by agreement; but if greater than six per cent, 
it must be in writing. 

Michigan. — Legal interest, seven per cent. Parties may agree in 
writing upon any rate not exceeding ten per cent. If more interest is 
agreed for, only legal interest recoverable. 

Minnesota. — Legal interest, seven per cent. Parties may agree in 



A CITIZEN OF THE UNITED STATES. 639 

writing for more, but agreement not valid for any excess over twelve per 
cent. Interest on judgments, six per cent. 

Mississippi. — Legal interest, six per cent. Parties may agree in 
writing for ten per cent. If more be taken or agreed for, the excess is 
forfeited. 

Missouri. — Legal interest, six per cent; but parties may agree in 
writing for any rate not to exceed ten per cent. If more be taken or 
agreed for, the creditor recovers only the principal, and interest at ten 
per cent is forfeited to the State. Parties may contract in writing for the 
payment of interest upon interest; but the interest shall not be compounded 
oftener than once a year. 

Nebraska. — Legal interest, ten per cent. Parties may agree on any 
rate not exceeding twelve per cent. On proof of illegal interest, plaintiff 
shall recover only principal. 

Nevada. — Legal interest, ten per cent. But parties may agree in 
writing for any rate. 

New Hampshire. — Legal interest, six per cent. A person receiving 
more forfeits threefold the excess ; but contracts are not invalidated by 
securing or taking more. Exceptions as to contracts of farmers and mer- 
chants, as in Maine. 

New Jersey. — Legal interest, seven per cent. ; on usurious contract, 
principal only can be recovered. 

New York. — Legal interest, seven per cent. A contract for more 
than legal interest is wholly void. If more than legal interest is paid, it 
may be recovered back within a year by payer, or within the next three 
years by the overseers of the poor. No corporation can interpose the 
defence of usury; nor can a joint-stock company, having the powers of a 
corporation. 

North Carolina. — Legal interest, six per cent. Eight per cent, may 
be recovered for loan of money by written agreement. On usurious con- 
tracts no interest is recoverable. 

Ohio. — Legal interest, six per cent. Any rate not exceeding eight per 
cent may be agreed upon in writing; excess cannot be recovered. Banks 
can charge or take by discount only six per cent. Railroad companies 
may borrow money at seven per cent. 

Oregon. — Legal interest, ten per cent. Parties may agree for one 
per cent a month. Usurious interest works a forfeiture of the principal 
and interest. 

Pennsylvania. — Legal interest, six per cent. Excess cannot be 
recovered. If paid, may be recovered back if sued for within six months. 

Rhode Island. — Legal interest, six per cent. Any higher rate may 
be agreed upon. 

South Carolina. — Legal interest, seven per cent. More than legal 
interest may be agreed upon by the parties. 

Tennessee. — Legal interest, six per cent. Parties may agree in writ- 
ing for ten per cent. If more be charged, the whole interest is forfeited, 
and if paid, may be recovered back; and the creditor is liable to a fine 
equal in amount to the excessive interest. 

Texas. — Legal interest, eight per cent. Parties may agree in writing 



640 THE PROPERTY RIGHTS OF 

for twelve per cent. If more than this is agreed for, no interest can be 
recovered. 

Vermont. — More than six per cent prohibited; and a person paying 
more may recover excess ; but this is not to extend to usage of farmers or 
merchants, as in Maine and New Hampshire. 

Virginia. — Legal interest, six per cent. All contracts for a greater 
rate void. Excess, if paid, may be recovered back. The receiver is liable 
to a fine of double the amount of the principal. 

West Virginia. — Legal interest, six per cent. Contracts for a 
greater amount are void as to the excess. 

Wisconsin. — Legal interest, seven per cent; but parties may agree 
upon a rate not exceeding ten per cent. Usurious contracts are void, and 
if excessive interest be paid, treble the amount thereof may be recovered 
back. 



CHAPTER XXVIII. 
THE LAW OF PLACE. 

SECTION I. 
WHAT IS MEANT BY THE LAW OF PLACE. 

If either of the parties to a contract is not at home, or if both 

are not at the same home, when they enter into the contract, or 
if it is to be executed abroad, or if it comes into litigation before a 
foreign tribunal, then the rights and the obligations of the parties 
may be affected either by the law of the place of the contract, or 
by the law of the domicile or home of a party, or by the law of the 
place where the thing is situated to which the contract refers, or by 
the law of the tribunal before which the case is litigated. All of 
these are commonly included in the Latin phrase lex loci, or, as the 
phrase is translated, the law of place. 

It is obvious that this law must be of great importance where- 
ever citizens of distinct nations have much commercial intercourse 
with each other. In this country it has an especial and very great 
importance, from the circumstance that, while the citizens of the 
whole country have at least as much business connection with each 
other as those of any other nation, our country is composed of 
thirty-seven separate and independent sovereignties, which are, for 
most commercial purposes, regarded by the law as foreign to each 
other. 



A CITIZEN OF THE UNITED STATES. 641 



SECTION II. 
THE GENERAL PRINCIPLES OF THE LAW OF PLACE. 

The general principles npon which the law of place depends 
are four: First, every sovereignty can bind, by its laws, all persons 
and all things within the limits of the State. Second, no law has 
any force or authority of its own, beyond those limits. Third, by 
the comity or courtesy of nations, — aided in our case, as to the 
several States, by the peculiar and close relation between the 
States, and for some purposes by a constitutional provision, — the 
laws of foreign States have a qualified force and influence. 

The fourth rule is perhaps that of the most frequent applica- 
tion. It is, that a contract which is not valid where it is made is 
not valid anywhere else ; and one which is valid where it is made 
is valid everywhere. Thus a contract made in Massachusetts, and 
there void because usurious, was sued in New Hampshire, and held 
to be void there, although the law of New Hampshire would not 
have avoided it if it had been made there. But courts do not take 
notice of foreign revenue laws, and will enforce foreign contracts 
made in violation of them. If contracts are made only orally, 
where by law they should be in writing, they cannot be enforced 
elsewhere where writing is not required ; but if made orally where 
writing is not required, they can be enforced in other countries 
where such contracts should be in writing. The rule that a con- 
tract which is valid where it is made is valid everywhere, is ap- 
plicable to contracts of marriage. 

As contracts relate either to movables or immovables, or, to use 
the phraseology of our own law, to personal property or to real 
property, the following distinction is taken. If the contract refers to 
personal property (which never has a fixed place, and is therefore 
called, in some systems of law, movable property), the place of the 
contract governs by its law the construction and effect of the con- 
tract. But if the contract refers to real property, it is construed 
and applied by the law of the place where that real property is 
situated, without reference, so far as the title is concerned, to the 
law of the place of the contract. Hence, the title to land can only 
be given or received as the law of the place where the land is 
situated requires and determines. And it has been said that the 
same rule may properly apply to all other local stock or funds, 
although of a personal nature, or so made by the local law, sueh 
as bank stock, insurance stock, manufacturing stock, railroad shares, 
and other incorporeal property, owing its existence to or regulated 

41 



642 TEE PROPERTY RIGHTS OF 

by peculiar local laws; and therefore no effectual transfer can be 
made of such property, except in the manner prescribed by the 
local regulations. 

SECTION III. 
THE PLACE OF THE CONTRACT. 

A contract is made when both parties agree to it, and not 

before. It is therefore made where both parties agree to it, if this 
is one place. But if the contract be made by letter, or by separate 
signatures to an instrument, the contract is then made where that 
signature is put to it, or that letter is written, which in fact com- 
pletes the contract. But this rule is subject to a very important 
qualification when the contract is made in one place and is to be 
performed in another place ; for then, in general, the law of this last 
place must determine the force and effect of the contract, for the 
obvious and strong reason that parties who agreed that a certain 
thing should be done in a Certain place intended that a thing should 
be done there which was lawful there, and therefore bargained with 
reference to the laws of the place, not in which they stood, but in 
which they were to act. This principle has been applied to an 
antenuptial contract; and it was held that, when parties marry 
in reference to the laws of another country as their intended 
domicile, the law of the intended domicile governs the construction 
of their marriage contract, as to the rights of property. 

But for many commercial transactions, both of these rules 
seem to be in force ; or rather to be blended in such a way as 
to give the parties an option as to what shall be the place of the 
contract, and what the rule of law which shall apply to it. Thus, 
a note written in New York, and expressly payable in New York, 
is, to all intents and purposes, a New York note ; and if more 
than seven per cent interest is promised, it would be usurious, 
whatever be the domicile of the parties. If made in New York, 
and no place of payment is expressed, it is payable and may be 
demanded anywhere, but would still be a New York note. But if 
made in New York, but expressly payable in Boston (where any 
amount of interest may be agreed for), and it promised to pay ten per 
cent interest, when payment of the note was demanded in Boston 
the promise of interest would be held valid. So, if the note were 
made in Boston, payable in New York, and promising to pay ten 
per cent interest, it would not be usurious. 

In other words, if a note is made in one place, but is payable 
in another, the parties have their option to make it bear the interest 
which is lawful in either place. 



A CITIZEN OF THE UNITED STATES. 643 

If the contract be entered into for money, and is made in one 
place but is payable at another place on a day certain, and no in- 
terest be stipulated, and payment be delayed, interest by way of 
damages shall be allowed, according to the law of the place of pay- 
ment, where the money may be supposed to have been required by 
the creditor for use, and where he might be supposed to have bor- 
rowed money to supply the deficiency thus occurring, and to have 
paid the rate of interest of that country. If a note made in New 
York and payable in Massachusetts were demanded in Massa- 
chusetts and unpaid, and afterwards put in suit in Massachusetts, 
and personal service made on the promisor there, I should say that 
any interest which it bore should be recovered, provided it were 
lawful in Massachusetts. And indeed, generally, that such a note, 
being made in good faith, might always bear any interest lawful 
where it was payable. But a note made in a State where the law 
permitted only a low interest, and intended in fact to be paid in 
that State, but written payable in some State permitting higher 
interest, merely to get this higher interest, could not by this trick 
escape the usury laws of the State where it was made, and get the 
higher interest. 

SECTION IV. 
DOMICILE. 

It is sometimes very important to determine where a person 
has his domicile, or home. In general, it is his residence, or that 
country in which he permanently resides. He may change it by a 
change of place both in fact and in intent, but not by either alone. 
Thus, a citizen of New York, going to London and remaining there 
a long time, but without the intention of relinquishing his home in 
New York, does not lose that home. And, if he stays in New York, 
his intention to live and remain abroad does not affect his domicile 
until he goes in fact. 

He may have his legal domicile in one place, and yet spend a 
very large part of his time in another. But he cannot have more than 
one domicile. His words or declarations are not the only evidence 
of his intent ; and they are much stronger evidence when against 
his interest than when they are in his favor. Thus, one goes from 
Boston to England. If he goes intending not merely to travel, but 
to change his residence permanently, and not to return to this coun- 
try unless as a visitor, he changes his domicile from the day that he 
leaves this country. Let us suppose, however, that he is still re- 
garded by the assessors as residing in Boston, although travelling 
abroad, and is taxed accordingly. If he can prove that he has 



644 THE PROPERTY RIGHTS OF 

abandoned his original home, he escapes from the tax which he 
must otherwise pay. Now, his declarations that he has no longer a 
home here, and that his residence is permanently fixed in England, 
and the like, would be very far from conclusive in his favor, and 
could indeed be hardly received as evidence at all, unless they were 
confirmed by facts and circumstances. But if it could be shown 
that he had constantly asserted that he was still an American, that 
he had no other permanent residence, and no home but that which 
he had temporarily left as a traveller, these declarations would be 
almost conclusive against him. In general, such a question would 
be determined by all the words and acts, the disposition of prop- 
erty at home, the length and the character of the residence abroad, 
and all the acts and circumstances which would indicate the actual 
intention and understanding of the party. 

Two cases have occurred in the city of Boston which illustrate 
this question. In one, a citizen of Boston, who had been at school 
in the city of Edinburgh when a boy and formed a predilection for 
that place as a residence, and had expressed a determination to re- 
side there if he ever should have the means of so doing, removed 
with his family to that city in 1836, declaring, at the time of his 
departure, that he intended to reside abroad, and that, if he should 
return to the United States, he should not live in Boston. He 
resided in Edinburgh and vicinity, as a housekeeper, taking a lease 
of an estate for a term of years, and endeavored to engage an Amer- 
ican to enter his family for two years, as instructor of his children. 
Before he left Boston, he made a contract for the sale of his mansion- 
house and furniture there, but shortly afterward procured said con- 
tract to be annulled (assigning as his reason therefor that, in case 
of his death in Europe, his wife might wish to return to Boston), 
and let his house and furniture to a tenant. Held, that he had 
changed his domicile, and was not liable to taxation as an inhabitant 
of Boston in 1837. In the other case, a native inhabitant of Boston, 
intending to reside for a time in France, with his family, departed for 
that country in June, 1836, and was followed by his family about three 
months afterwards. His dwelling-house and furniture were leased 
for a year, and he hired a house for a year in Paris. At the time of 
his departure he intended to return and resume his residence in 
Boston, but had not fixed on any time for his return. He returned 
in about sixteen months, and his family in about nine months after- 
wards. Held, that he continued to be an inhabitant of Boston, and 
that he was rightly taxed there, during his absence, for his person 
and personal property. This last case was distinguished from the 
former by the different intent of the parties upon their departure 
from home. 



A CITIZEN OF THE UNITED STATES. 645 

It is a general rule that, if one has a domicile, he retains it until 
he acquires another. Thus, if a seaman, without family or property, 
sails from the place of his nativity, which may be considered his 
domicile of origin, although he may return only at long intervals, or 
even be absent for many years, yet, if he does not, by some actual 
residence or other means, acquire a domicile elsewhere, he retains his 
domicile of origin. 

It seems to be agreed that one may dwell for a considerable 
time, and even regularly during a large part of the year, in one 
place, or even in one State, and yet have his domicile in another. 

A woman marrying takes her husband's domicile, and changes 
it with him. A minor child has the domicile of his father, or of his 
mother if she survive his father ; and the surviving parent, with 
whom a child lives, by changing his or her own domicile in good 
faith, changes that of the child. And even a guardian has the same 
power. 



CHAPTER XXIX. 
TKADE-MAKKS. 

The statute of July 8, 1870, provides for trade-marks. The 
following are the important sections which relate to this sub- 
ject : — 

Sect. 77. And be it further enacted, That any person or firm 
domiciled in the United States, and any corporation created by tho 
authority of the United States, or of any State or Territory thereof 
and any person, firm, or corporation resident of or located in any 
foreign country which by treaty or convention affords similar privi- 
leges to citizens of the United States, and who are entitled to the 
exclusive use of any lawful trade-mark, or who intend to adopt and 
use any trade-mark for exclusive use within the United States, may 
obtain protection for such lawful trade-mark by complying with the 
following requirements : to wit, — 

First, By causing to be recorded in the patent office the names of 
the parties, and their residences and place of business, who desire 
the protection of the trade-mark. 

Second, The class of merchandise, and the particular description 
of goods comprised in such class, by which the trade-mark has been 
.or is intended to be appropriated. 



6-16 THE PROPERTY RIGHTS OF 

Third, A description of the trade-mark itself, with fac-similes 

thereof, and the mode in which it has been or is intended to be ap- 
plied and used. 

Fourth, The length of time, if any, during which the trade-mark 
has been used. 

Fifth, The payment of a fee of twenty-five dollars, in the same 
manner and for the same purpose as the fee required for patents. 

Sixth, The compliance with such regulations as may be pre- 
scribed by the Commissioner of Patents. 

Seventh, The filing of a declaration, under the oath of the per- 
son, or of some member of the firm, or officer of the corporation, to 
the effect that the party claiming protection for the trade-mark has 
a right to the use of the same, and that no other person, firm, or cor- 
poration has the right to such use, either in the identical form, or 
having such near resemblance thereto, as might be calculated to 
deceive; and that the description and fac-similes presented for 
record are true copies of the trade-mark sought to be protected. 

Sect. 78. And be it further enacted, That such trade-mark shall 
remain in force for thirty years from the date of such registration, 
except in cases where such trade-mark is claimed for and applied to 
articles not manufactured in this country, and in which it receives 
protection under the laws of any foreign country for a shorter period ; 
in which case it shall cease to have any force in this country by vir- 
tue of this act at the same time that it becomes of no effect else- 
where ; and during the period that it remains in force it shall entitle 
the person, firm, or corporation registering the same to the exclusive 
use thereof so far as regards the description of goods to which it is 
appropriated in the statement filed under oath as aforesaid ; and no 
other person shall lawfully use the same trade-mark, or substantially 
the same, or so nearly resembling it as to be calculated to deceive, 
upon substantially the same description of goods : Provided, That, 
six months prior to the expiration of said term of thirty years, 
.application may be made for a renewal of such registration, under 
regulations to be prescribed by the Commissioner of Patents, and 
the fee for such renewal shall be the same as for the original regis- 
tration ; certificate of such renewal shall be issued in the same 
manner as for the original registration, and such trade-mark shall 
remain in force for a further term of thirty years : And provided 
further, That nothing in this section shall be construed by any 
court as abridging, or in any manner affecting unfavorably, the 
claim of any person, firm, corporation, or company, to any trade- 
mark after the expiration of the term for which such trade-mark was 
registered. 



A CITIZEN OF THE UNITED STATES. 647 

Sect. 79. And be it further enacted, That any person or corpora- 
tion who shall reproduce, counterfeit, copy, or imitate any such re- 
corded trade-mark, and affix the same to goods of substantially the 
same descriptive properties and qualities as those referred to in the 
registration, shall be liable to an action in the case for damages for 
such wrongful use of said trade-mark, at the suit of the owner 
thereof, in any court of competent jurisdiction in the United States ; 
and the party aggrieved shall also have his remedy according to the 
course of equity to enjoin the wrongful use of his trade-mark, and 
to recover compensation therefor in any court having jurisdiction 
over the person guilty of such wrongful use. The Commissioner of 
Patents shall not receive and record any proposed trade-mark which 
is not and cannot become a lawful trade-mark, or which is merely 
the name of a person, firm, or corporation only, unaccompanied by 
a mark sufficient to distinguish it from the same name when used 
by other persons, or which is identical with a trade-mark appropriate 
to the same class of merchandise, and belonging to a different owner, 
and already registered, or received for registration, or which so 
nearly resembles such last-mentioned trade-mark as to be likely to 
deceive the public : Provided, That this section shall not prevent 
the registry of any lawful trade-mark rightfully used at the time of 
the passage of this act. 

Sect. 80. And be it farther enacted, That the time of the receipt 
of any trade-mark at the patent office for registration shall be noted 
and recorded ; and copies of the trade-mark, and of the date of the 
receipt thereof, and of the statement filed therewith, under the seal 
of the patent office, certified by the commissioner, shall be evidence 
in any suit in which such trade-mark shall be brought in contro- 
versy. 

The sections 81, 82, 83, and 84, authorize the commissioner to 
make rules, &c, relating to the transfer of trade-marks ; prohibit 
the obtaining of trade-marks fraudulently ; save to everyone any 
remedy he has now for the fraudulent use of his trade-mark; and - 
provide that no trade-mark shall be issued in any unlawful or 
injurious business, or if it be sought for purposes of fraud or 
deception. 



648 THE PROPERTY RIGHTS OF 



CHAPTER XXX. 

MEANS PEOVIDED FOE THE EECOVEEY 
AND COLLECTION OF DEBTS. 

1. Arrest and Imprisonment. — In eight States no person can 
be arrested or imprisoned for debt. These are Virginia, Maryland, 
North Carolina, Mississippi, Florida, Wisconsin, Arkansas, and Texas. 
In California no female, and in Louisiana no female and no person 
who has not a domicile in the State, and irr Ohio no female nor any 
officer or soldier of the Revolutionary army, can be arrested or im- 
prisoned for debt. In all the States the intention of the law is to 
limit imprisonment to those cases in which either fraud was com- 
mitted in the contraction of the debt, or the debtor intends to ab- 
scond out of the reach of process. The provisions to effect this are 
very various. Generally, the plaintiff must file in the clerk's office, 
or indorse upon the writ, an affidavit of the facts on which he 
grounds the right of arrest. In some of the States provision is 
made for the imprisonment on execution of a debtor who can be 
found to possess, and refuses to surrender, property or interest, real 
or personal, which might be made available for the payment of his 
debts. 

2. The Trustee Process. — The trustee process, or garnishee 
process, or process of foreign attachment, — by all which names 
it is known, — is now nearly or quite universal. It is substantially 
this ; A owes B a debt ; A has no property in his hands or pos- 
session which B can get at ; but A has deposited in the hands of C 
goods or property or credits of some kind, or A has a valid claim 
against C for services rendered, or money loaned, or goods sold, or 
something else ; and this B gets by suing A, not with a common 
writ, but with a trustee writ, so called, in which he declares that C 
is the trustee of A, for property, &c. ; and on this writ, if B recovers 
payment against A, he will have an execution against all A's prop- 
erty in the hands of C, and all A's valid demands against C. But 
C, when notified, may come into court, and, in answer to all ques- 
tions put to him, declare that he (C) has no property in his hands 
belonging to A, and that he does not owe A any thing. And then 
the plaintiff may put to him such question? /is he pleases, to draw out 
the truth. 

No one is adjudged trustee, or made to pay to the creditor the 
debt due to the debtor, if he has given a negotiable note for it, be- 
cause he might have to pay it again to an honest indorsee. Nor if 



A CITIZEN OF THE UNITED STATES. 649 

the debt is not certainly due ; nor, generally, if it is due from the 
trustee in any official capacity, which will require him to account 
over for the money in his hands ; nor if the debtor has recovered a 
judgment against the trustee, on which execution may issue. 

3. The Homestead. — In most of the States a homestead is 
protected from creditors, and exempted from all attachment or 
execution, excepting in some States for taxes, or wages of labor to 
a certain amount. In the abstract of the Law of Husband and 
Wife, already given in Section 2 of Chapter VII., a brief statement 
of the quantities and values of the homesteads exempted from sale 
on execution in the several States is also given. This is stated in 
that connection, because the principal purpose of these homestead 
exemptions seems to be the protection of the wife and family. 

Various provisions are made in each of these States to combine 
a due protection of the creditor with proper prevention of frauil. 
The most common means are by requiring that " the homestead " 
should be distinctly defined and set apart, and in many cases by 
the additional requirement that the description and location of it 
should be put on public record. 

In all the States there are also exemption laws. These provide 
very generally that bed and bedding and other necessary furnituie, 
needful clothing, a Bible and school-books, and a certain amount of 
food and fuel, shall not be taken on attachment or execution. In 
some States the tools of a trade, the uniform, arms, and equipments 
of soldiers or officers in the militia, the family burying-vault and 
gravestones, a team or yoke of oxen, bees with their hives and 
honey, a boat for fishing, &o., are exempted. The statutes ofter 
enumerate the articles exempted quite minutely, and then add that 
necessary articles to a certain amount of value, usually one or two 
hundred dollars, are also exempted. 



CHAPTER XXXI. 

THE LIENS OF MECHANICS AND MATE- 
RIALMEN FOR THEIR WAGES AND 
MATERIALS. 

In nearly all our States there are now some provisions for 

securing to mechanics, and to persons supplying materials (who are 
called "material-men"), their wages and pay for their materials, by 
means of liens, as they are called in law. A lien is a hold upon or a 



650 THE PROPERTY RIGHTS OF 

valid claim against property. This means that every mechanic em- 
ployed upon a house, and, in most of the States, upon a vessel, and 
in some, upon any property whatever, as a railroad or canal, either in 
the construction or repair of it, has a lien upon the property on 
which he has labored or for which he has supplied materials, for 
the amount of his wages and the price of his materials. This lien 
or claim he has for a certain time ; and during that time he may 
either sue for his wages, and make an attachment of the property, 
or, in some States, file a petition with the proper court; and in 
either may have the property sold to pay his wages, unless the 
owner redeems it. The statutes of the several States contain 
various provisions to the effect that the mechanic or material-man 
shall give reasonable notice of his lien, or take steps to enforce it 
within a reasonable time. 

The reason of these provisions is obvious enough. The purpose 
of the law is to assist and protect the mechanic, or material-man, 
but not to enable him to commit a fraud or do an injury to his 
neighbors ; and it would be an injury to a man to let him buy a 
house and pay full price for it, and then tell him that the mechanics 
who built it had a lien (which is much the same in effect as a mort- 
gage) upon the house, without his knowing any thing about it ; and 
it would be an injury to an owner, who had contracted with the 
master-workman to repair or change his house at great expense, to 
settle with this master-workman in due time and pay him the full 
amount of his bill, without any notice to the owner that he was 
under an obligation to pay again for the labor spent upon his 
house, or let the house go on execution. 

Of all these laws for the recovery of debts, and the enforce- 
ment of the liens of mechanics, the provisions now in force are 
quite recent. Only of late years has imprisonment for debt been 
greatly mitigated or removed, and the trustee or garnishee process 
made what it now is, exceedingly convenient and useful. The 
homestead law and this lien law, though now so widely spread, 
are a modern invention, or, at least, of modern introduction. The 
effect of this recent origin is twofold. First, important practical 
questions still exist as to their construction, application, and effect, 
which only time can solve. Secondly, there is not only no general 
agreement as to their details, but, to all appearance, no permanent 
contentment with these details anywhere. The statutes on these 
subjects undergo very frequent changes of all degrees of impor- 
tance, and we have no reasonable assurance anywhere that pre- 
cisely what is law to-day will be law in the same place to-morrow. 

I have thought it best, therefore, not to attempt to give all 
those statutory provisions of the several States in detail. Such 



A CITIZEN OF THE UNITED STATES. 651 

a thing might be much worse than useless if it led to conduct 
grounded on a mistaken belief that the law of one time is just 
what it is at another. Nothing more has been attempted, there- 
fore, than this : first, to give a general and accurate view of all 
those principles of the laws relating to creditor and debtor which 
are now generally agreed upon, and may be regarded as probably 
permanent ; secondly, to give such information as may be depended 
upon to those who are caught in an emergency where they cannot 
at once seek counsel, or for any reason will not, and who may here 
be told, in general, how the law stands in relation to them ; thirdly, 
to indicate distinctly to the mechanic what rights he may possess 
and what securities he may hold, and how he may lose the rights 
and securities he possesses, and to the owner or buyer what liabili- 
ties he may incur, unless the one and the other take the proper 
course which the law has provided for their safety. 

In the present state of the laws for the collection of debts or 
the exemption of property, it would be difficult for any one but a 
lawyer to learn or state all the exact provisions and effects of these 
laws. And, even if this were possible, no mechanic would probably 
be willing to trust to himself to make out his writ or file his peti- 
tion to enforce his claims or lien ; and any competent counsel whom 
he would employ for this purpose would be able to tell him what 
the law was at that very time, in that very State, and on that 
precise question. 

For these reasons little more is attempted in this chapter, be- 
cause little more is thought possible than to yield all available 
assistance to debtors or creditors who have not the means or oppor- 
tunity of employing counsel, and of indicating to those who can 
consult them, the rights, security, and safety they may possess, by 
wise advice and accurate conformity with the law. 

The forms to be used under the lien laws are not prescribed by 
statute. Those given below are in use in some of our principal 
cities ; and the same, in substance, would be suitable anywhere. 

(183.) 

A NOTICE UNDER MECHANIC'S LIEN LAW. 

(To bejiled with the clerk of the county.) 

To Esquire, 

Clerk of the City and County of 
Sir: 

Please to take notice, That I, residing at No. 

Street, ia have a claim against amounting to the 

sum of due to me, and that the claim is made for and on 



652 THE PROPERTY RIGHTS OF 

account of {here state the work or materials) , and that such work was done 
in pursuance of {here describe the contract), which building is owned by- 
situated in the ward of the city of on the 
side of Street, and is known as £To. The 
following is a diagram of said premises {or, the said premises being described 
as follows) . 

And that I have and claim a lien upon said house or building, and the 
appurtenances and lot on which the same shall stand, pursuant to the pro- 
visions of an act of the legislature of the State of to secure the 
payment of mechanics, laborers, and persons furnishing materials towards 
the erection, altering, or repairing of buildings. 

Dated, this day of 18 

{Signature.) 
County of ^ 

[•ss. 
City of ) 

{The name of the party claiming the lien), being duly sworn, says, that 
he is the claimant mentioned in the foregoing notice of lien, that 

he has read the said notice and knows the contents thereof, and that the 
same is true to his own knowledge, except as to the matters therein stated 
on information and belief, and as to those matters he believes it to be 
true. 

to before me, this day of 18 

{Signature.) 

(184.) 

A BILL OF PARTICULARS OF MECHANIC'S CLAIM. 

( To be served on owner.) 

A bill of particulars, Of the amount claimed to be due from 
for and on account of {work or materials), and that such 
work was done {or materials furnished) in pursuance of {state the contract 
or order) , which building is owned by situated in the 

ward of the city of on the side of Street, 

and is known as No of said street. 

M. 

To 
18 

(185.) 

A RELEASE AND DISCHARGE OF A MECHANIC'S LIEN. 

I do hereby certify, That a cerfain mechanic's lien, filed in the 
office of the clerk of the county of the 

day of one thousand eight hundred and at 

o'clock in the noon, in favor of claimant 

against the building and lot, situate side of 



A CITIZEN OF THE UNITED STATES. 653 

Street, and known as No. in said street, whereof 

is owner, and is contractor, is discharged. 

{Signature.) 

ss. On the day of one thousand eight 

hundred and before me came „ who is known to me 

to be the individual described in and who executed the above certificate, 
and acknowledged that he executed the same. 

(Signature.) 



(186.) 
RELEASE AND DISCHARGE OF A MECHANIC'S LIEN. ANOTHER FORM. 

Whereas, We, the subscribers, have erected and furnished materials 
for erecting on lot or piece of ground situate 

And have agreed to release all liens which we or any or either of us have, 
or might have, on the said by reasons of materials furnished or 

work performed for erecting the same. Now these presents witness, that 
we, the subscribers, for and in consideration of the premises, and of the 
sum of one dollar, to each of us at or before the sealing and delivery 
hereof by the said well and truly paid, the receipt whereof we 

do hereby acknowledge, have remised, released, and for ever quitclaimed, 
and by these presents do remise, release, and for ever quitclaim, unto the 
said and to his heirs and assigns, all and all manner of liens, 

claims, and demands whatsoever, which we, or any or either of us now 
have, or might or could have, on or against the said and prem- 

ises, for work done or for materials furnished, for erecting and construct- 
ing the said building, or otherwise howsoever. So that he the said 
and his heirs and assigns, shall and may have, hold, and 
enjoy the said and premises, freed and discharged from all 

liens, claims, and demands whatsoever, which we, or any or either of us, 
now have, or might or could have, on or against the same, if these pres- 
ents had not been made. 

In witness whereof, We have hereunto set our hands and seals, the 
day of the date written opposite our respective signatures. 

(Date.) (Witnesses at signing.) (Signatures of claimants.) 



1. A TREATISE ON THE RULES OF ORGANIZATION AND 
PROCEDURE IN DELIBERATIVE ASSEMBLIES; 



2. A GLOSSARY OF LAW TERMS IN COMMON USE. 



RULES FOR ORGANIZATION AND PROCEDURE 
IN DELIBERATIVE ASSEMBLIES. 



CHAPTER I. 

ORIGIN AND PURPOSE OF THE RULES OF ORDER. 

The rules of order for deliberative bodies are the results of centuries 
of experience in England and in this country. They grew up in the Eng- 
lish Parliament, and are often called rules of parliamentary order. Their 
purpose is to secure to all the members alike, of any body whatever that 
has met to debate or discuss questions, entire freedom of speech, protec- 
tion from interruption and from ill treatment of any kind. They deter- 
mine in what order motions in relation to various subjects shall be 
considered, and generally'how the assembly may proceed to accomplish its 
purposes. The reasons for these rules may not always be obvious, but 
they are such as the experience of England for many ages, and of this 
country for more than a century, has proved to be on the whole beneficial. 
Hence, when any assembly of men come together to discuss matters of 
common interest, these rules are considered as applying of course. 

When the body is permanent, having many sessions, it is common to 
vote that the established rules of order shall have force in that body until 
changed. As these rules have no binding force on any body, it is always 
competent for any assembly, whether temporary or permanent, to change 
these rules, and adopt new ones at their pleasure. 

It not unfrequently happens that some member of an assembly or 
meeting moves to dispense with the rules, or with some special rule. In 
permanent bodies there are usually rules for determining how large a 
majority of members is requisite to suspend the rules ; as, for example, 
two-thirds or three-fourths. Where there is no such rule, a simple major- 
ity may suspend the rules, or any rule. Sometimes a member will ask that 
a measure be adopted by general consent. The presiding officer then puts 
the motion, and, if no one objects, it is carried, but if any one objects, it 
is withdrawn. 

42 



658 A TREATISE ON 



In what follows, I sometimes use the word " assembly," or " house," or 
" casual meeting. " By the word " assembly " I refer generally to permanent 
bodies, as legislatures, city councils, school committees, and the like. By 
"casual meeting " I mean an assemblage of persons who come together for 
some common purpose, or moved by some common interest, to deliberate 
upon and take such measures as seem to them desirable, but who have no 
official and permanent existence as a political body. But the rules of order 
may be considered as applying for the most part to all these bodies or 
meetings alike, so far as the character and purpose of the meeting permits. 

CHAPTER II. 

ORGANIZATION. 

If the body be a permanent one, it has officers who, at the first session, 
are chosen, or who hold office by some law or rule; and they take their 
places in discharge of their duties at every session. Thus, at a town meet- 
ing, the senior selectman presides at meetings appointed by law for the 
election of various public officers. At other town meetings, a presiding 
officer must first be chosen. The presiding officer of the body to be 
organized may be a speaker, moderator, chairman, or president. 

If an assembly of men come together who are as yet without organi- 
zation, some one says aloud, " Gentlemen will please come to order; " and 
as soon as order and silence are obtained, he says, "Please nominate a 
moderator (or chairman)." When nominations are made, it is his duty to 
take the first that comes to his ear, and say, " Mr. A B is nominated as 
moderator; is it your pleasure that he be chosen to that office? Those 
who are in favor thereof will say ' aye.' " When they have voted, he says, 
" They who are opposed thereto will say * nay ' (or ' yes ' and 'no');" 
and he will then announce the vote as in the affirmative or negative. If in 
the negative, he will call for another nomination: if in the affirmative, he 
will conduct the person chosen to the chair, or will call upon him to take 
the chair. This person becomes then the presiding officer of the meeting. 
Upon taking the chair, he will proceed to complete the organization by 
asking for the election of a clerk, who is then chosen in the same manner 
as the presiding officer was. The vote may be taken by holding up of 
hands, or by ballot. 

It not unfrequently happens, in large and important meetings, that the 
first organization is only temporary, and that the first thing done by it is 
to choose a committee to report names for a permanent organization. The 
presiding officer usually says, "How shall this committee be chosen?" 
If some one replies by a motion that the committee be nominated by the 
chair, he puts that motion, and, if it be adopted, proceeds to nominate the 
committee. If the motion is to appoint them by nomination from the meet- 
ing, and that is carried, the chairman asks for nominations, and then puts 
each name as he first hears it to the vote. 

If the assembly consists of delegates chosen to attend it, the next step 
should be for the appointment of a committee to receive and examine cre- 
dentials ; because only those who are duly authorized should vote on the 



THE RULES OF ORDER. 659 

permanent organization or any subsequent questions. This committee is 
raised either by appointment by the chair, or by nomination, as before. 
Strictly, this committee should make their report, and the right of those 
present to be there ascertained, before any thing further is done. But as 
the examination of credentials sometimes occupies a considerable time, it 
is common to proceed at once to the permanent organization and the busi- 
ness of the meeting. It is obvious, however, that no important questions 
should be passed upon until it is known who has the right to vote upon 
them. 

CHAPTER III. 

QUORUM. 

This word means, in practice, the number of persons, or the proportion 
of the whole number, who are necessary for the transaction of business. 
This number or proportion may be fixed by law; and if not so fixed, it may 
be determined by the assembly itself, or it may be regulated by some rec- 
ognized usage. If there be no rule on the subject, one more than half 
of the number of the members composing the assembly is the number 
required to transact business. No business should be transacted unless a 
quorum be present; and if at any time a member states that he thinks 
a quorum is not present, and asks for a count, such count must be taken 
by the presiding officer, or under his direction; and if it is found that the 
number is less than that requisite for a quorum, the assembly is adjourned 
This is called being- " counted out." 



CHAPTER IV. 

HOW QUESTIONS ARE DECIDED. 

The general rule is, by a majority of those present and voting. But 
this rule may be qualified by a specific rule of the assembly, or of the law 
creating the assembly, requiring a specific number or proportion in rela- 
tion to some special question; thus, sometimes a vote cannot be passed, as, 
for example, over the veto of the President of the United States, by less 
than two-thirds of each House. Some of our State constitutions provide 
that certain things shall be done by the legislature only by a certain pro- 
portion of all the members elected; and it is common to provide that the 
rules and orders shall not be changed without a consent of two-thirds, or 
of a still larger proportion. On the other hand, it is very common to pro- 
vide that one-third or one-fourth of the members voting shall suffice to 
require the taking of a question by yeas and nays. This is done in part 
to make a vote more certain; but mainly, that all may know how each one 
rotes. 

OF THE OFFICERS. 

The presiding officer announces the business which is before the assem- 
bly; and if that stands in any special order, as in the warrant for a town 



(5bO A TREATISE ON 



meeting, he should announce it in that order ; indeed, the warrant should 
be read. 

He receives all motions and propositions offered by members, and puts 
to vote all questions which are regularly moved or properly arise, and 
announces the result. If any messages or communications are sent to the 
assembly, he receives and announces them. He nominates committees, if 
this be a part of his duty by a rule, or if it be ordered. 

By far the most important part of his duty is to preserve the rules of 
order, and for this purpose to state what they are whenever a question 
arises. We shall presently see that there can be an appeal from his decision, 
and how that can be conducted ; but unless there be such appeal, his ruling 
must be acquiesced in and promptly obeyed. This is, indeed, a matter of 
the last importance. If a presiding officer does not know his duty, or neg- 
lects or refuses to perform it, it is impossible for order to prevail. And if 
he tries to perform his duty, and is not effectually sustained by the assem- 
bly, it is impossible that there should be order, or any good result of the 
meeting ; and the best thing it can do is to disperse itself at once. It is 
often a trying thing, especially for those not trained in the discipline of 
debate, to submit to rules which seem to them merely technical, and in 
their effects subversive of all free discussion. If such feelings prevail, 
and the meeting yields to them, or is unable to repress those who, from 
irritation, or mistake, or worse motives, insist upon disturbing the order 
of the assembly, nothing more can be done until in some way order is 
vindicated and restored; and if that cannot be done, it is not an organized 
assembly, but a mob. 



CHAPTER V. 

HOW BUSINESS MAT BE INTRODUCED. 

If the assembly be a permanent one, there is probably some record of 
the orders of the day; and those subjects are to be considered in the order 
fixed for them, unless this order is changed by a special vote. Sometimes 
it is voted that the orders of the day shall be taken up at a certain hour, 
the previous time being open for motions. Sometimes a special topic has . 
been assigned for a special hour; and when that hour comes, the presiding 
officer announces that hour and that topic, or any member may call it up. 
If none of these things designate the business which must come before the 
assembly, some business is introduced by motion. 

A member, rising, addresses the presiding officer by his title, and the 
presiding officer, hearing him, calls to him byname, and this member then 
has the floor. If more members than one rise at once, the presiding officer 
should give the floor to him whose voice he first heard. But to prevent 
partiality, a member objecting that the presiding officer did not give the 
floor to himself or some other member who rose first, may ask for a vote 
upon this point; but this measure is seldom resorted to. No stranger can 
address the chair or the assembly ; but he may offer a petition through any 
member, and it is every member's duty to offer to the assembly any peti- 



THE RULES OF ORDER. 661 

tion placed in his hands by his constituents, unless it is distinctly and cer- 
tainly objectionable for indecency, personal scandal, or other impropriety. 
We have seen, in a former part of this volume, how the national consti- 
tution guards the right of petition. This petition, when offered, should 
be received and courteously dealt with. 



CHAPTER VI. 

OF MOTIONS. 

It is convenient to divide motions into direct and principal motions on 
the one hand, and collateral or subsidiary motions on the other. Motions 
of the first class are those which introduce subjects or questions, or which 
directly qualify or dispose of them. Motions of the second class are such 
as to lay on the table, to postpone to a day certain, to commit, to amend, 
to postpone indefinitely, or a motion for the previous question. To these 
may be added a motion to adjourn. All of these motions will be sepa- 
rately considered. 

The presiding officer may always direct that a motion be reduced to 
writing. Of course, if he exercises this power, he must be sure to do it 
impartially. It is sometimes especially necessary to do this when the de- 
bate grows confused, as by amendment upon amendment; for if it all be 
trusted to memory, it may be difficult to say what the question is. Some- 
times the clerk or secretary reduces the motions to writing, as they are 
offered; and sometimes a member requires that a motion be reduced to writ- 
ing, and then it is usually done; but, practically, this matter is left, in 
most cases, to the discretion of the presiding officer. 



CHAPTER VII. 

RESOLUTIONS AND ORDERS. 

Every thing is decided by an assembly by a vote; and this, therefore, is 
a general term, covering all its acts. But these acts may be divided into 
resolutions and orders. A resolution expresses the sentiment, belief, or wish 
of the assembly. An order is a command, and it maybe directed to one of 
their own officers, or to the whole body, as when an order is made as to the 
time of taking a question and the like; or to any person or body whom the 
assembly have a right to command. Sometimes, though not very accurately, 
it is expressed thus: Ordered, that so and so be requested to do a certain 
thing, as if the Secretary of the Commonwealth is requested to return a 
bill ; which may always be done before it is approved. 

SECONDING. 

In practice, motions are often announced by the presiding officer without 
waiting for a seconding. One reason for this is, that if the presiding officer 
be a member of the assembly, he may second the motion himself ; and 



662 A TREATISE ON 



his announcing it is equivalent to his seconding it; but, strictly, a motion 
should not be considered until it be seconded, for it is not worth while to 
discuss a motion which no one in the assembly cares enough about to 
second; and not unfrequently, to test this, the presiding officer, if he hears 
no seconding, asks if that motion is seconded; and if it be not seconded, 
he does not put it. 

WITHDRAWING A MOTION. 

It often happens that a mover wishes to withdraw his motion; but if it 
has been seconded, it is in possession of the assembly, and cannot be with- 
drawn, excepting by their leave. But if the mover asks leave to withdraw 
his motion, it is usually granted to him. 



CHAPTER VIII. 

THE ORDER OF MOTIONS. 

Legislative assemblies usually provide by a rule as to the order in which 
motions may be made. In ordinary or casual meetings, to attend to some 
business, or to discuss some question, no special rules of this kind are 
adopted. It is convenient, however, to consider the rule on this subject 
in force in Congress and in some of the State legislatures, as in force in any 
meeting. The order in this respect is frequently, that, while a question is 
before the meeting, only the following motions shall be received, and they 
in the following order; namely, to adjourn, to lie on the table, for the pre- 
vious question, to postpone to a day certain, to commit, to amend, to post- 
pone indefinitely. These several motions will be considered presently. At 
present it need only be said that the above order rests on sufficient reason ; 
for instance, a member moves to postpone a subject indefinitely, and, as it 
stands, the assembly would be disposed to postpone it indefinitely, and so 
get rid of it. But if a member thinks he can amend the matter before the 
meeting, so as to make it acceptable to the meeting, he should have an 
opportunity of doing so; and therefore if a member moves to postpone 
indefinitely, and another member moves to amend, this last motion takes 
precedence of the former, and must be put first; then if the meeting does 
not like the proposed amendment, and rejects it. the motion to postpone 
indefinitely will be put. Similar reasons exist for the order of precedence 
of all these motions. 

We will now consider these motions in the order above stated. 



CHAPTER IX. 

MOTION TO ADJOURN. 

This motion is said to be always in order. It is, however, subject to 
the universal rule that a motion once disposed of cannot be immediately 
repeated. Hence, if a motion to adjourn be negatived, some other motion 



THE RULES OF ORDER. 663 

or measure must be passed upon in some way, and then a motion to ad- 
journ may be again made. 

Nor is it meant that any member can rise up when another is speak- 
ing and move to adjourn; for a member who has the floor has the right 
to finish his remarks, unless called to order, which call will presently be 
spoken of. But whenever he has closed his remarks, whoever gets the floor 
may always move to adjourn. This motion must be put, no other motion 
taking precedence of it. It is common, when a member moves to adjourn, 
for another member to ask him to withdraw his motion for a short time, 
while some other incidental matter be brought forward and disposed of ; 
then the motion to adjourn comes up. The adjournment may be without 
day, which is a dissolution of the meeting, or to a time which the motion 
specifies. Sometimes there is a previous vote, that when the meeting ad- 
journs it adjourns to such a time; and sometimes there is a general rule 
about the adjournment, as in the daily sessions of the legislature, and an 
adjournment is to the time that may be fixed in either of these ways. 



CHAPTER X. 

TO ME ON THE TABLE. 

This motion may be made for a variety of reasons. One is, ihat the 
subject may give way to another which a member deems of more immediate 
importance. Another is, because a member wishes for some delay, that he 
or the assembly may examine further into the matter. Any thing which 
is laid on the table remains there, unless a motion be made to take it up. 

It is a general rule that a motion that any subject lie on the table is not 
debatable ; and the motion is sometimes made to enable the meeting to get 
rid of it without further debate. It is an insufficient way, however, be- 
cause, if the motion be laid on the table, a motion may be made at once to 
take the subject from the table, or to reconsider the motion to lie on the 
table, and one of these motions is generally debatable. 



CHAPTER XI. 

THE PREVIOUS QUESTION. 

This is a motion of much importance. The history of it in parliamen- 
tary law is somewhat obscure; now, however, and in this country, it is a 
generally established rule that the motion for the previous question is not 
debatable, and, therefore, it forms the best, if not the only adequate, 
means by which an assembly can terminate a debate at once, when it has 
made up its mind that any further debate would be useless or mischievoas. 
The necessity that every assembly or meeting should have this power in 
their own hands ought to be obvious. For example, let there be a meeting 
of one hundred men, ninety-four of whom are in favor of a certain course, 
which one of themembodies^in a motion, and six are opposed to this course 
and to the motion, — it is plain that the six, by relieving each other, may 



664 A TREATISE ON 



talk on indefinitely, and weary out the meeting, or consume all the time 
at its disposal, and so prevent any thing from being done, unless the meet- 
ing can terminate the debate and proceed to a vote. This it can do by 
means of the previous question, if a motion therefor is not debatable. 
But if this motion is debatable, the debate may still go on indefinitely. 

The way this end is accomplished is this: the previous question is, 
" Shall the main question be now put ? " A member moves the previous 
question, and it is seconded; then the presiding officer must put to the meet- 
ing at once the question, " Shall the main question be now put ? " No 
debate can follow, but the meeting determines this question by vote; and 
if that vote is in the affirmative, the main question is then puff. The main 
question is the question which was before the house, and was then de- 
bated. Sometimes the ordering of the main question is considered as cut- 
ting off amendments. We think it a more frequent and a better way to 
consider the main question as the question in the form in which it was 
under discussion when the previous question was ordered. The presiding 
officer will then first put the last amendment offered, and then the previous 
amendments, in their order, and then the original question as it stands, 
either amended or not amended. 



CHAPTER XII. 

POSTPONEMENT TO A DAT CERTAIN. 

This motion is frequently made for such reasons as seem good to the 
mover, and is carried if they seem good to the meeting. Generally, it is 
accompanied by the words " and shall then be taken up for debate," or 
some equivalent words, providing that at that time this subject shall take 
precedence of all others. If such a motion be passed, when that time 
arrives the presiding officer will announce that the time has come for con- 
sidering such a subject, and will state the question as then before the 
assembly. 

CHAPTER XIII. 

TO COMMIT. 

A motion to commit is made when the mover desires to have the sub- 
ject fully considered and investigated, and a report made upon it after such 
investigation. It is, however, often made, in fact, for other reasons: one 
of them is, to dispose of it for the time, and get it out of the way; or it 
may be to get rid of it altogether, by giving it to a committee who Will 
never make a report of it. And sometimes it is alleged that the motion is 
made to get a vote upon the subject without debate; for that mut-t happen 
if the time is limited, and the committee delay their report until tlere is no 
time for debate. But these are not good reasons: the only good reason 
being that just above stated. 

A committee make their report through their chairman, or some one 
whom the chairman or the committee directs to make it. It is frequently 



THE RULES OF ORDER. 665 

received by the presiding officer, as a matter of course, and without motion, 
and handed to the clerk or secretary. More commonly, however, a motion 
is made and voted upon to receive the report. A mere reception of a report 
discharges the committee, so that, unless authorized by a new vote, they 
have nothing more to do with it. But the reception of the report is no ex- 
pression whatever of the sentiments of the meeting in relation to it, although 
a refusal to receive would be a strong expression of disapprobation. Some- 
times the motion is that " the report be received and approved." 

Not unfrequently a subject is referred to a committee, with instructions 
to do something about it; as to report a resolution, or a bill or order, or 
to report at a certain time: which instructions the committee must, of 
course, obey. 

If the report has appended to it resolutions, or a bill or vote of any 
kind, various motions may be made in reference to these: as, if they are 
only resolutions, that they are adopted as the sense of the meeting; or, if 
they recommend any special measure, or offer a bill or specific vote, the 
motion may be that the resolutions, bill, or vote be placed in the orders of 
the day, or be assigned for consideration at a particular time; or such 
other disposition may be made of them as the mover wishes. 

The formation and duties of committees will be spoken of presently. 



CHAPTER XIV. 

MOTION TO AMEND. 

This is a very wide subject, because motions may be made for amend- 
ments of almost any kind. It is in this matter that confusion is most apt 
to come into the business of an assembly. Certain rules, intended to pre- 
vent confusion, have been generally adopted, and may be considered as 
established by usage, although in practice they are sometimes disregarded. 

The first of these is, that every motion to amend is itself subject to amend- 
ment; but as this, if carried too far, would lead to inextricable disorder, 
there is a subsidiary rule, to the effect that, if an amendment be moved, 
an amendment may be moved to this amendment ; but there can be no 
amendment offered to the second amendment. Thus, if one member offers 
a motion, a second member may move to amend it in a certain way; a third 
member may move to amend the amendment offered by the second mem- 
ber; but there it must stop. If a fourth member moves to amend the 
amendment offered by the third member, his motion would not be in order, 
and therefore would not be received. After the amendments offered are 
passed upon, then, aud only then, the fourth member may bring forth his 
amendment as a new motion. A second rule is, if the assembly either 
adopt or reject a proposed amendment, that amendment cannot be after- 
wards altered or amended in any part of it. Generally the same rule 
applies to amendments which was stated in reference to adjournments ; 
namely, that if the amendment be once rejected, it cannot be immediately 
repeated. For, if it could be, there would be no end to a discussion of this 
kind. Two or three obstinate persons might, by getting the floor succes 



666 A TREATISE ON 



sively, hold the attention of the meeting to a measure which they had 
once rejected. But if, after an amendment is rejected, further action is 
had upon the principal motion, so as to give to that amendment a new 
aspect, or a new effect, it may then be properly offered and considered 
anew. 

It may be said, also, that if a proposition consists of many parts, which 
succeed each other in an orderly way, amendments which relate to the 
earliest should be first considered. It has been said that if an amendment 
be made to a later part, an amendment to a former part is not receivable. 
This we do not think reasonable: for it may be that the amendment of the 
latter part has made the amendment of the former part necessary. 

Amendments may be made by altering, by striking out, by insertion, 
or both striking out and insertion, or by additions. 

If the amendment propose to strike out certain parts, and is rejected, 
that amendment cannot be repeated, unless other amendments have given 
to it a new effect ; but an amendment may be offered to strike out those 
parts or words together with other parts or words, for this would be a new 
amendment. So, if certain words be struck out, an amendment cannot be 
offered to restore them, unless in connection with other words which give 
them a new effect. So, if an amendment to insert is rejected, it cannot be 
repeated, unless it be with other words which suffice to make of it a different 
proposition. 

If the amendment be by striking out and inserting, any member may 
ask that it be divided, and the question taken first on striking out, and 
then on inserting. This is usually done on request ; but if it is objected 
to, the presiding officer will put the question to vote. The reason for 
dividing such a question is obvious. Members may be agreed on the 
expediency of striking out certain words, but there may be much difference 
of opinion as to supplying their places with any words, or with what words; 
and if the motion to strike out alone prevails, then the motion to insert 
will be put; and any other motion may then be made in regard to the 
words to be inserted. Any motion which consists of different parts may 
be divided, and the different parts voted upon separately. 

Whenever a motion to amend is made, whether by striking out or in- 
serting, or both, or by some addition, the presiding officer should read the 
passage as it stands when offered, and then should read the motion to 
amend, and then should read the passage as it would read if the amend- 
ment be adopted, in order that the meeting may know clearly what the 
effect of their votes may be. 

The amendment sometimes consists in filling blanks. The propei 
method of doing this has been much disputed, and may not now be quite 
settled. The blank may require an amount inserted, or it may require a 
time inserted. Different members may move different amounts or differ- 
ent times; and the question then occurs, in what order these questions 
shall be considered. One way would be to take the motions in the order 
in which they are made. So far as we know, this method is very seldom 
adopted. The question lies between the largest and the smallest amounts, 
or the longest and the shortest times. To show the diversity on this 
point, it may be stated that, in the English Parliament, the rule is, 



1ME RULES OF ORDER. 667 

that the smallest sum first be voted upon; and if that be rejected, then 
the larger : and the longest time first ; and if that be rejected, then the 
shorter. While in the United States Senate the question is first on the 
largest sum, and then on the smaller, and first on the longest time, and 
then on the shorter. Permanent assemblies will probably make their own 
rule on the subject; and any casual meeting or assembly may direct which- 
ever method preferred. On the whole, we think that the commonest, as 
well as most convenient and reasonable rule, is that of the Senate of the 
United States, just stated. Then, if the question be first taken on the 
largest amount, those who are in favor of some amount, but not of so large 
a one, can vote against it; and if it be negatived, the amount can be brought 
down by successive motions, until an amount be reached which a majority 
are willing to agree to. A similar remark may be made in regard to be- 
ginning with the longest time. 



CHAPTER XV. 

HOW COMMITTEES ARE APPOINTED. 

In permanent assemblies there are always rules as to the manner of ap- 
pointing committees. In casual meetings, any method may be adopted 
that the meeting chooses. Sometimes they are chosen by ballot; sometimes 
by a nomination from members, followed by a vote; sometimes by a nom- 
ination by the presiding officer, followed by a vote; and sometimes by ap- 
pointment by the president, without vote. If there be no general rule, and 
no special vote in reference to a committee, the customary way in casual 
meetings is for the £>residing officer to nominate the members for the com- 
mittee; and, generally, he offers such nomination to the meeting for a vote 
of approval; but this he need not do, unless a vote requires it. Sometimes 
the presiding officer declines to nominate, and asks the meeting to appoint 
in some other way. Sometimes the presiding officer is authorized to ap- 
point the members at a future time, after the meeting is dissolved, and 
notify the members of the committee through the clerk or by publica- 
tion. Sometimes the presiding officer, or other person or persons, are added 
to the committee by motion. It is not regular to put any persons on the 
committee who are not members of the assembly or meeting. This is 
sometimes done by casual meetings, and is to be understood as a request 
to such persons to serve the meeting in that way. 

In appointing the committees, however this duty may be performed, it 
is customary to appoint the mover first on the committee, and after him, 
to appoint those who have manifested most interest in the question, equal- 
izing those in the affirmative and in the negative, as far as may be, but 
having the balance rather in the affirmative than in the negative. 

At the meetings of the committee, the common rules of order, so far as 
they are applicable, are usually applied. A majority of the committee 
constitutes a quorum, unless there be some vote or rule to the contrary. 
The number of the committee should be fixed by vote, if not by rule; and 
if various numbers are proposed, the most convenient and customary 



668 A TREATISE ON 



method would be, as before, by beginning the vote with the largest number. 
When the committee are appointed, the clerk should notify the chairman, 
and inform him who the members are, and give him the papers referred to 
the committee. 

HOW THE COMMITTEE MEET AND ACT. 

The committee is called together by the person first named upon it, 
after such consultation with the other members about time and place as he 
sees fit. 

The committee, when they meet, may choose a chairman, but an almost 
invariable usage appoints the person first named as chairman ; usually, 
also, if the chairman be absent or disqualified, the person second named 
takes the place of chairman, and so on afterwards. 

A committee is sometimes authorized to send for persons and papers, ii 
the assembly appointing the committee has a right to require these; as, 
for example, a legislative body has. And the committee summons persons 
and demands papers; and if the persons do not come, or come but refuse to 
answer, or if the papers are not brought, the committee must report the 
fact to the assembly appointing them, who will then take such measures 
as they think proper. 

In casual meetings, as, for example, of the stock-holders of a corpora- 
tion, the committee is sometimes authorized and requested to obtain some 
desired information; and in this case, if they cannot obtain the informa- 
tion, they can only report the fact, leaving the body which appointed them 
to do what they think proper. An ordinary committee can adjourn from 
time to time, until their business is completed. 

MINORITY REPORTS. 

We have already spoken of the reports of a committee. Such a report 
is the report of a majority of the committee. There may also be minority 
reports; but these are not reports of the committee, and are not entitled to 
reception or consideration, but by vote. Practically, however, they are 
usually received as a matter of course, if not in themselves open to decided 
objection. They are not usually printed with the report of the committee, 
unless by special vote. 



CHAPTER XVI. 

COMMITTEE OF THE WHOIiE. 

Sometimes an assembly of a permanent character goes into committee 
of the whole. This may be done by a casual meeting, but little or nothing 
could be gained by it. The general purposes of going into committee of 
the whole are two; one of these is to give the presiding officer an oppor- 
tunity for debate, such as any other member has. This purpose is some- 
times accomplished more easily by the presiding officer simply putting a 
member in his chair and taking his place among the members, and there 



1HE RULE is OF ORDER. 669 

joining in the debate; but regularly a presiding officer cannot take part in 
the debate. One reason for this rule is, that it helps him to preserve that 
impartiality which is strictly indispensable. 

The more general purpose of going into committee of the whole is to 
give the opportunity for a freer discussion, because technical rules of order 
do not apply there with so much force. Moreover, motions may be made 
and questions put to the vote, and so the sentiment of the members 
ascertained, while the votes passed do not have the force and effect of for- 
mal votes of the assembly. It is a common thing for the committee thus 
to agree upon some measure which serves to indicate the opinion of the 
assembly and direct its action, although it has no binding force, and may 
be reversed in the assembly. While the technical rules of order are not in 
full force in the committee of the whole, they are in force so far as the 
preservation of order requires. The previous question cannot be put 
in the committee of the whole, nor is there any way to stop a debate 
of which the committee are weary, but by a motion that the committee 
rise and report. The committee of the whole cannot adjourn. When it 
gets through its work for that session, it can only rise and report progress, 
and, if it sees fit, ask leave to sit again. When it rises, the chairman re- 
ports progress to the assembly; that is, states briefly what the committee 
has done or agreed upon, and asks leave for the committee to sit again, if 
he be so instructed. 



CHAPTER XVII. 

PRIVILEGED QUESTIONS. 

That one of these which is most frequently made use of is the right 
to call to order. This is a right which every member has at all times; and 
it is the only way in which it is orderly to interrupt a person while he has 
the floor and is speaking. The reason for this single exception to an 
otherwise universal rule is, that but for this rule a member who indulges 
in disorderly remarks and improprieties of any kind or extent would 
be permitted to go on as long as he chose. Therefore the presiding 
officer or any member may, at any time, call a speaking member to order. 
The way of doing so is this: the member, rising, says, " I call the gentleman 
to order," or u I rise to order." The presiding officer replies, " Mr. A B 
calls Mr. C D to order ; Mr. C D will take his seat, and Mr. A B will 
state his point of order." The point of order being stated, the presiding 
officer then rules upon it. If he decides that the member speaking was out 
of order, he will tell him so, and point out wherein the disorder existed, and 
the member speaking will then resume his remarks; but if he persists in his 
disorder, the presiding officer will require him to take his seat and discontinue 
his speech. This is the ordinary way ; but if the presiding officer decides that 
the speaking member is in order, any member of the assembly may appeal 
from this decision, and if the presiding officer decides that the speaking 
member is not in order, the member himself may appeal from the decision. 
Of this subject of appeals from the presiding officer we shall speak pres- 
ently, now stating only that, after the question of order is determined, the 



670 A TREATISE ON 



speaking member may resume his remarks and finish his speech, providing 
he avoids what has been decided to be disorderly. 

It is hardly accurate to say that a call to order is the only thing which 
permits the interruption of a member speaking, for another member may 
perceive some other cause for interruption ; as that persons are present who 
should not be, or that persons present are violating some order of the 
assembly, or that there is so much noise and confusion that the assem- 
bly cannot hear the person speaking. In any such case, any member is 
privileged to rise and call the speaker's attention to the disorder. 

Another privileged question, which does not permit the interruption 
of a member speaking, but which takes precedence of all ordinary ques- 
tions, is what may be called a personal privilege. It is when a member 
rises to complain of personal ill-treatment of him as a member, or of 
some public attack upon him, or falsification of his speech; and he in- 
vokes the protection of the house, or, it maybe, the opportunity of correct- 
ing an error or exposing a falsity. So, also, if the assembly itself has 
been ill-treated in regard to its rights and privileges, any member may rise 
and state the fact, to the end that the assembly may protect itself. 



CHAPTER XVIII. 

ORDERS OF THE DAT. 

In a permanent assembly there are always rules which regulate this 
matter. Generally the clerk, beside his daily record, keeps in a book 
appropriated to that purpose a list of what are called the orders of the 
day. It consists of each of the subjects for future action, which he enters 
as they come before the assembly. Those which are assigned to a day 
certain are especially the order for that day. When the orders of the day 
are called for, they are taken up in the order in which they stand in the 
book, unless some special rule or motion be made changing this order. 
Sometimes it is ruled that, on a certain day or days, the orders shall be 
taken up, and all debatable matter passed over. Then if any member, 
as any subject is called, expresses his wish to debate it, it is passed over. 
All other subjects are disposed of; and in this way the orders of the day 
are cleared of a large portion of their topics. 

Sometimes some particular subject is assigned for some particular houi 
on a day named, and it is then the order of the day for that hour ; and 
when the hour arrives, if the speaker does not announce it, it is a privileged 
motion to call it up for consideration; and when it is disposed of, the 
orders of the day are resumed in the order in which they stand in the 
book. 

CHAPTER XIX. 

HOW THE PRESIDING OFFICER PUTS QUESTIONS. 

When a motion is made on a subject, the presiding officer announces it, 
and so brings it before the assembly, usually adding, " The question before 



THE RULES OF ORDER. 671 

the assembly is so and so." Then there may follow debate; and when the 
debate terminates, the presiding officer, rising, says, " Is the assembly ready 
for the question ? " If there be no answer, or members say "yes," the 
speaker then puts the question, being very careful to state precisely what 
it is. He then says, " As many as are of opinion that this motion should 
be adopted " (or using some other equivalent or appropriate words) " will 
say ' aye ' " (or, will lift up their hands, as the rule or usage may be, or 
as he thinks proper to direct in the absence of any rule or usage). He 
then calls for the negative vote in the same manner; and then announces 
what he believes to be the result. 

HOW THE VOTE MAY BE ASCERTAINED. 

If any member questions this result, he rises and says to the presiding 
officer, " I doubt the vote," or ' ' Please make the vote certain." The pre- 
siding officer then says to the meeting, "The vote is doubted: those in 
favor of the motion will rise and stand in their places until they are 
counted." When they are counted, he will in the same manner call up 
those opposed to the motion; and when they are counted, he will announce 
the result. If so large a number arise at once as to make the majority 
certain, the presiding officer may omit the call on those who hold the oppo- 
site view, unless that is requested. 

The count is usually made by the presiding officer himself, or by the 
clerk under his direction, if the meeting is small enough to make this count 
easy and certain; otherwise, he appoints tellers. In permanent assemblies, 
where members have their fixed seats, tellers are usually appointed at the 
beginning of the session, for the different divisions of the assembly. In 
casual meetings, the presiding officer appoints the tellers, as the count is 
required; that is, he designates certain persons sitting in different parts of 
the meeting, each to count and report the votes within the part assigned 
to him, which is denned as well as it may be. After the rising vote is 
taken, the tellers are called upon in their order each to report his number, 
which the clerk repeats aloud and takes down: the result is then stated. 

It may happen that a member doubts the accuracy of one or another of 
the tellers' reports; he may then move for a new count, and, if the assembly 
sees fit, a new count is ordered. 

TAKING THE QUESTION BY YEAS AND NAYS. 

In permanent assemblies this matter is regulated by rule, so that a 
number much less than a majority, as one-third or one-fourth, may require 
the votes to be so taken. The reason is, that it is a proper protection to 
the rights of a minority to require that each member should declare his 
vote, which is then recorded. A vote is taken in this way by calling the 
names from a list or roll, and it is therefore obvious that it cannot be so 
taken where there is no list or roll. 



672 A TREATISE ON 



CHAPTER XX. 



HOW A MOTION IS MADE. 



A member rises and says, " Mr. Speaker " (or Mr. Moderator, or Mr. 
Chairman), "I offer the following motion," or, simply, "I move," &c. 
He then states or reads his motion. He shonld then stop until the presid- 
ing officer puts the motion, and he may then speak to it. It is considered 
that he has the right to speak first upon it ; and courtesy usually allows 
him the right of closing the debate. Every one who speaks should speak 
" to the question," as the phrase is, but in practice he is not required to 
confine himself strictly and narrowly to the exact question. He may say 
whatever seems to him to have a bearing upon it, though this be remote 
and collateral. Here a certain discretion may be used, and if there be no 
intentional disregard of order on the part of the speaker, the discretion 
should be liberal. At any time, however, the presiding officer, or any 
member believing the speaker to wander quite too far, may call him to 
order. 

A member who has the floor may, at the request of some other 
member, give way to him. If he does so at all, he does so, in strict 
right, altogether; that is, after the member to whom he gives way has 
finished, any other member may obtain the floor by rising; but commonly, 
if a member having the floor gives way to another member for a special 
purpose, courtesy gives the floor back to him after the member to whom he 
yielded has finished his remarks; especially is this so if the member ex- 
pressly gives way for a few minutes. 

RUEES AND USAGES OF DEBATE. 

There are some rules or usages in this matter of debate which it may 
be well to mention. One is, that a mover should not make two motions at 
once; for example, he should not make a motion, and add thereto, "I 
move that this motion be laid on the table." Regularly, he should wait 
until the first motion is put, and then make his second motion; but in 
practice, it is common to make two such motions together, if this is not 
objected to. 

Another rule intended to promote courtesy in debate is, that no mem- 
ber should be spoken of by name. He should be described as the member 
from such a place, or who spoke last, or last but one, or who made the 
motion, or in some such way. For a similar reason, no member having 
the floor can address any other member, or any person but the presiding 
officer. 

It may be considered as a general rule that no person should speak 
more than once to the same question; but this rule, if it be one, is com- 
monly disregarded in practice. But if a member who has spoken once, or 
oftener, gets the floor, and a member who has not spoken at all rises and 
desires the floor, it is common and it is right for the presiding officer to give 
it to him. 



THE RULES OF ORDER. 673 

Sometimes a rule is made by the meeting that no member shall speak 
more than so many minutes; and a member having the floor under this 
rule may give up a part of his time to another member, reserving only 
what is left. When his time expires, it is the duty of the presiding officer 
to call upon him to stop ; then some member may move that he have leave 
to go on, either indefinitely or for a certain time; and if the meeting so 
vote, he goes on. 

Sometimes the assembly or meeting adopts a rule that the debate shall 
stop at a certain time, and the question shall then be taken ; at which time 
it must be taken, unless otherwise ordered by a new vote. 

Another common rule is, that the presiding officer does not vote unless 
there be a tie or equal vote, — then he may vote; but if he declines to 
vote, the motion does not pass. 

Another rule, and one of much importance, is, that there should be 
but one question and one subject before the meeting at any one time. 
Every one knows how certainly, if a number of men meet and discuss a 
question in a conversation and without any order, the discussion will wander 
everywhere; new subjects coming up continually, as one or another sug- 
gests them, until there neither is nor can be any definite consideration of 
any one subject, and no rational conclusion concerning it. To make this 
disorder impossible is one of the main purposes of the rules of order; 
and it helps to accomplish this purpose if the meeting is willing to dis- 
pose altogether of one thing before they take up another. 



CHAPTER XXL 

APPEALS FROM A PRESIDING OFFICER. 

It is his duty to keep order, to conduct the transaction of business, 
and decide all questions according to the rules of order. But it is the 
right of any member to appeal from the decisions of the chair. When he 
rises and announces his appeal, the presiding officer says, " The decision 
of the chair is appealed from; the question before the assembly is, Shall 
the decision of the chair be sustained? " This question is debatable; and 
here the general rule is relaxed, and- the presiding officer, without leaving 
his place, takes a part in the debate. Usually, he begins it by stating the 
reasons for his decision; the member who appeals follows him, with his 
reasons for dissenting. Then the debate goes on. When it closes, the 
presiding officer puts the question, " Shall the decision of the chair be 
sustained?" and, according to the result, he reasserts his decision or 
reverses it. 

CHAPTER XXII. 

RECONSIDERATION. 

After any vote has passed, a member may move for its reconsidera- 
tion. It is a general rule or usage that only one who has voted with the 

43 



674 A TREATISE ON 



majority can move for a reconsideration. The reason for this rule is, that 
if no one of the majority is disposed to reconsider the vote, it may he 
supposed that if the vote were again taken it would pass by the same ma- 
jority. The objection to this rule is, that after a vote has passed in a small 
meeting, members enough may come in who, had they been present and 
voted before, would have made a majority on the other side, and who 
would now reverse the vote. Practically, a member of a minority, wish- 
ing, for such reason, or any other good reason, to have the vote retaken, 
finds some member of the majority who will put the motion for him. In 
permanent assemblies there are generally rules on the subject of reconsid- 
eration; as that it cannot be made but once, or cannot be made unless 
within a certain short time after the vote passed. It may happen that a 
member voting with the majority will move at once a reconsideration, for 
the very purpose of preventing a reconsideration; for if the reconsideration is 
refused, which it will probably be when voted upon by the same persons, the 
vote is put beyond reach of reconsideration. If one who voted with the 
majority moves for reconsideration, intending to vote against it, and de- 
siring thereby only to prevent a later consideration of the question, any 
member may move to lay the motion for reconsideration on the table. If 
the assembly is willing to do this, this motion may be called up at any time 
afterwards. 

A member desiring reconsideration, but not wishing the vote taken at 
the time, may move for a reconsideration, and then move that his motion 
be laid on the table ; and if this is done he can then call it up when he 
will. 



CHAPTER XXIII. 

OF A BILL 

A bill, in parliamentary law, means an instrument which is intended 
to become a law. Before it can be this it must pass through sundry stages, 
which are devised to secure to the measure sufficient consideration and 
delay. These stages are not everywhere the same. Commonly they con- 
sist of three several readings, of engrossment, and of enactment. 

A bill may be reported by a committee, of its own accord, or because 
it was instructed by the assembly to report such a bill; or any member 
may ask leave to offer a bill. When reported or offered, it is read the first 
time, usually without objection. It then passes into the orders of the 
day. When it comes up in its turn, or is called up, the presiding officer, 
naming the bill by its title, puts the question, " Shall this bill have its 
second reading?" At this time it maybe debated and negatived; but 
usually it is not debated at this stage, and is sometimes read only by its 
title. It takes its place again in the orders of the day, and when it comes 
up for a third reading, it is usually debated, if at all. If it receives a 
third reading, the question is put (usually the next day), " Shall this hill 
be now engrossed? " This is seldom debated. If it is ordered to be en- 



THE RULES OF ORDER. 675 

grossed, it then goes to the other house ; and if there it passes through the 
same stages, it goes to the committee of that house on engrossed bills. 
When they report that it is well and truly engrossed, it is returned to the 
house, and the question is there put, " Shall this bill be enacted? " If this 
be voted, it is sent to the senate, and if enacted there, is sent to the execu- 
tive for his approval and signature. 

There is usually a standing committee on bills in the third reading, 
and another on engrossed bills. The bill may be sent to either of these at 
the proper stage, or to any other committee, standing or special, or dis- 
posed of in any way, as the house shall choose. Sometimes, if there be 
no objection, a bill when presented is read twice (once usually by its title), 
and then sent to an appropriate committee, or otherwise disposed of. 

After the bill has received the consent of the executive, or, if he vetoes 
it, is passed by the legislative body by the requisite majority over his veto, 
it becomes a statute or a law. 



CHAPTER XXIV. 

THE PRESERVATION OF ORDER. 

It has been already said that the rules of procedure of a deliberative 
body are intended to preserve order, and are wisely adapted to that pur- 
pose. The importance of a due regard to them is obvious, for without 
order it is impossible that the deliberations of any meeting should be use- 
ful or lead to any good result. 

It has been also intimated that the most important thing of all is that, 
on the one hand, the presiding officer should know his duty, and discharge 
it fearlessly, promptly, and impartially ; and, on the other hand, that the 
assembly or meeting, of whatever kind it may be, should sustain the pre- 
siding officer by obedience to his ruling, and by compelling obedience on 
the part of the refractory and disorderly. We have already seen that the 
whole meeting, and every member of it, has it in their and his power to 
rectify any mistake or misdoing of the presiding officer in an efficient and 
orderly way, by an appeal properly conducted. If there be no such appeal, 
the only thing that remains is obedience. Undoubtedly there may be 
cases where the presiding officer mistakes his duty, or misuses his power; 
then let there be an appeal; but if there be no appeal, it must be far bet- 
ter to submit to the temporary and probably slight mischief resulting from 
his error, rather than throw the whole meeting into disorder, and cause 
the chaotic confusion which must ensue when the directions of him who 
should guide the meeting are wholly disregarded. 

It has been said that the rules of order are the results of centuries of 
experience and of general consent; and it may therefore be believed that they 
are as well devised as any can be, for the preservation of order. But that 
they sometimes fail in this — as any rules must — cannot be denied. 

It may happen that a number of persons who are determined to delay, 
obstruct, and embarrass the procedure of an assembly, may do this through 



676 A TREATISE ON THE RULES OF ORDER. 

the application of the very rules of order. This practice has now grown 
so common and well known as to require a name for it; and a name 
has been drawn from other practices, not disreputable only, but criminal. 
That name is filibustering. But in a treatise on the rules of order, it can- 
not be necessary to say more of this practice than that it is simply a com- 
Dlete perversion of order into disorder. 




GLOSSARY 

OF 

LAW TEEMS IN COMMON USB. 



Abandonment. A surrender of rights to property, or of property, by one 
person to another. Used in marine insurance, when the insured, hay- 
ing been paid as for a total loss, abandons what is left or saved of the 
property to the insurers. 

Abate. Literally, to throw down. Applied principally to nuisances, and 
then means their prostration or removal. 

Abet. One abets another to commit a crime, by encouraging, command- 
ing, procuring, or counselling him thereto. 

Abduction. Forcibly taking away or detaining a man's wife or child. 

Abscond. To go out of the jurisdiction of the courts, or conceal one's 
self, for the purpose of avoiding their process. 

Acceptance. The reception of something offered by another with the 
purpose of retaining it; or of an order given by another. See chapters 
on Agreements, Sales, and Notes and Bills. 

Accession. The right by which one holds all of one's own property 
together with all of that which has become united to it, naturally or 
artificially. 

Accessory. In criminal law, means one who is concerned in the perpe- 
tration of an offence, before the fact, by procuring, counselling, or 
commanding another to commit it; or, after the fact, one who, knowing 
the crime to have been committed, relieves, comforts, or assists the 
criminal. 

Accretion. The increase of real estate by portions of soil that are added 
to it through the operation of natural and gradual causes. 

Accrue. To grow from, or to be added to, as interest accrues on the 
principal. 

Acknowledgment. The act of declaring an act or deed to be his by one 
who executed the same. There are various ways of making an acknowl- 
edgment. See chapter on Purchase and Sale of Real Property, 
and forms annexed thereto. 



678 GLOSSARY. 



Act of God. An accident which arises from a cause that operates with- 
out the interference of or aid from man. See chapter on Carriage 
of Goods. 

Action. Literally, a doing of any thing. In law, it means a demand, 
made according to the rules of law, in a court of justice, of property, or 
a right to property, from some other person. The word "suit" is 
sometimes used in the same sense. 

Ad Litem. Literally, for the suit. Every court has power to appoint a 
guardian for the suit for one who needs such assistance. 

Adjournment. Literally, putting off to another day. Generally applied 
to assemblies, who either adjourn without day or finally, or else to a 
day then or previously determined. 

Administrator and Administration. See chapter on Executors 
and Administrators. 

Admiralty. A court of admiralty has a large and, for some purposes, an 
exclusive jurisdiction over maritime causes, civil or criminal. 

Adultery. Sexual intercourse of a married person with a person who 
is not the criminal's husband or wife. 

Advancement. A gift from a parent to a child by anticipation of the 
whole or some part of what that child would naturally inherit on the 
death of the parent. 

Adverse Possession. Possession or enjoyment of land under such cir- 
cumstances as indicate that the land is claimed and enjoyed as the pos- 
sessor's. If such possession has been continued for twenty years, the law 
generally raises the presumption that it was rightful. 

Advocate. One who assists or makes a plea or an argument for a party 
to an action in court. 

Affinity. The connection or relation caused by marriage between each 
of the married persons and the kindred of the other. 

Affirm, Affirmation. They who have conscientious scruples against 
taking an oath are now generally permitted to affirm, ' ' under the pains 
and penalties of perjury;" the affirmation being substituted for the 
oath. 

Agency. See chapter on Agency. 

Alias. Means, literally, otherwise, or at another time. A man is said to 
be named John Smith, alias Richard Roe; and if an execution is re- 
turned unsatisfied, an alias execution is issued. 

Alibi. Presence in a place different from that before described or alleged; 
as, when a man charged with an offence committed at a certain time 
and place proves an alibi; that is, that he was somewhere else at that 
time. 

Alien. A person of foreign birth. 

Alimony. See chapter on Marriage and Divorce. 

Allegiance. The obligation or duty which holds a citizen or subject to 
his government or sovereign. See chapter on Naturalization. 

Alluvion. The increase of earth on the shore of the sea or the bank of 
a river, caused by the water, acting slowly and gradually. If the in- 
crease is sudden and violent, and the land can be traced back to that 
from which it is torn, it is said to belong to the original owner. 



GLOSSARY. 679 



Ambassador. One sent abroad by some sovereign, prince, or State on 
public business. Public ministers are of different ranks. First, am- 
bassador; then, minister plenipotentiary and envoy extraordinary; then, 
minister resident; then, charge d'affaires. This country has never 
sent or received an ambassador. 

Ambiguity. Literally, doubtfulness. If it be latent, that is, only dis- 
covered by evidence bearing on an instrument, it may be cured or 
explained by evidence; if it be patent, that is, apparent on the face of 
the instrument, it cannot be explained by evidence, but ' makes the 
instrument inoperative as far as the ambiguity extends. 

Ancestor. In law, one who has preceded another in a direct line of 
ascent. 

Annuity. A sum of money which is to be paid to another for a certain 
term. When this annuity is charged upon land, it is called a rent- 
charge. 

Antenuptial. This word is applied to bargains and settlements made 
before and with a view to an expected marriage. 

Appeal. The removal of an action at law from an inferior court to a 
higher court by a party seeking a review or new trial. The party ap- 
pealing is the appellant, the other party is the appellee. For the use of 
the word in deliberative assemblies, see Rules of Order. 

Appraisement. An accurate valuation of property. This word is mainly 
used in probate matters. 

Apprentice. See chapter on Apprenticeship. 

Appropriation. See chapter on Payment. 

Approver. A word much used in English criminal law, but not so much 
in this country. It means one who confesses himself guilty of a crime, 
and accuses others for the purpose of saving himself. Here such a per- 
son is commonly said to be or to give State's evidence. 

Appurtenances. Things which belong to another or principal thing, as 
incident to the principal thing, and which pass or go with the principal 
thing when that is conveyed or transferred. Mainly applied to land, but 
sometimes to a ship. 

Aristocracy. A government in which a class of men have supreme and 
exclusive authority. 

Arraign. A prisoner is arraigned when he is called to the bar of a court 
to answer the charge in the indictment or complaint. 

Array. The whole number of persons who are summoned to court to 
serve as jurymen. From the whole array are selected those who serve 
on the several juries. 

Arrest. The seizing of a person, and depriving him of his liberty, by 
legal authority and process. 

Arson. The malicious burning of the house of another person. Some 
part of it must be burned; but the word *• house " here comprehends all 
out-houses, such as barn or stable, cow-house, and the like, which belong 
to the house, and are within the curtilage, or the common fence, which 
includes them all. 

Articles. The specific divisions of a document or instrument, written or 
printed. Thus the name was given to the articles of confederation which 



680 GLOSSARY. 



preceded our Constitution. Articles of impeachment are the specific 
allegations charged against the impeached. Articles of partnership are 
the specific agreements of the parties. Articles of war is the name given 
to the code of laws, established for the government of the army, and 
to that for the government of the navy. 

Assassination. Is, in law, murder committed for hire, and with no per- 
sonal cause moving from the murdered to the murderer. 

Assault. An illegal and forcible attempt or offer to do a bodily harm to 
another. See Battery. 

Assign. To transfer or make over to another. See chapter on Assign- 
ments. 

Assurance. Used in commercial law as the equivalent of insurance. So 
of assured and assurer. The name " assurance " is sometimes given to 
an instrument which confirms the title to an estate. 

Attainder. See chapter on the Constitution. 

Attorney. One who has been put by some person in his place or stead, 
with authority to manage some business for him. See chapter on 
Agency. An attorney-at-law is an officer in a court of justice who has 
been admitted to practise there. 

Authorities. The decisions of courts which are referred to as declaring 
or confirming some point of law. 

Authority. The delegation of power by a principal to some person as 
his agent or attorney. See chapter on Agency. 

Average. A term mainly used in marine insurance. A general average 
loss is, in insurance and shipping law, a loss purposely incurred or sus- 
tained for the common benefit of the ship, freight, and cargo; all three 
of which interests contribute to make up the loss, in proportion to their 

■ respective values incurring the same danger and escaping from it. Par- 
ticular average is a loss on either the ship, the cargo, or the freight, 
and is borne by the owner or insurer of that interest ; it is often called 
a partial loss. 

Award. See chapter on Arbitration. 



B. 

Bail. This word commonly means those persons who become sureties 
for the appearance of a defendant in court, and to whom he is deliv- 
ered. The powers of bail over a defendant are very great. When they 
are provided with the proper instrument from the court, they may 
arrest him wherever he is, although in a different State, or whatever he 
may be employed about, even on Sunday, and may do whatever is 
necessary to get at him ; and they may command the assistance of 
the sheriff and other civil officers. 

Bail-bond. This is the bond by which the bail become securities for 
the defendants. Our Constitution prohibits the requiring of excessive 
bail. 

Bailment. The putting something into the hands of another, or deliver- 
ing it to him. The bailor is he who delivers; the bailee, he to whom 



GLOSSARY. 681 



delivery is made. If the bailment be for the exclusive benefit of the 
bailor, the bailee is responsible only for injury happening from his gross 
negligence ; if it be for the exclusive benefit of the bailee, he is respon- 
sible for slight negligence; if for the benefit of both parties, he is 
responsible for ordinary negligence, or the absence of ordinary care. 

Bank-note, or Bank-bill. See chapter on Notes and Bills. 

Bankrupt. One who refuses or is unable to pay his debts. We have 
now a national bankrupt law, which provides the means by which 
all the property of such a person is divided equitably among all his 
creditors. 

Banns or Matrimony. A public notice or declaration of the intention 
of a man and woman to marry each other; the purpose being, that per- 
sons objecting to the marriage may have an opportunity to interpose 
their objections before the marriage takes place. 

Bar. A bar to an action is a perpetual and sufficient obstacle. The 
word also means the whole collective body of the members of the legal 
profession in a county, city, or State. 

Bargain and Sale. This phrase is applied in law to a contract between 
two parties, by which land is sold and transferred. 

Barrister. This name is given in England originally, and was formerly 
given in this country, to lawyers admitted to the bar, or to conduct 
and argue cases in court; but it is not now much, if ever, used in tins 
country. 

Bastard. One who is born of an unlawful connection; an illegitimate 
child. In many of our States, a child of parents who afterwards marry 
and acknowledge him or her as their own is legitimated. 

Battery. Any unlawful beating or personal violence, however slight. 
Spitting in one's face may be a battery. 

Bed. The bed of a stream is that part between the banks which is 
occupied and covered by the water when it does not spread over and 
beyond its banks. 

Benefit of Clergy. In England, a clergyman was exempt from the 
punishment of death ; and in ancient times, any one who could read 
was entitled to this benefit. 

Bequeath. See chapter on Distribution of Property. 

Bigamy. The knowingly marrying a second time when a former mar- 
riage still exists. 

Bill. A complaint in equity or chancery addressed to the chancellor, or 
to a court of equity, and containing the particulars of the action. 

Bill (in legislation). See Rules of Order. 

Bill of Exchange. See chapter on Notes and Bills. 

Bill of Lading. A receipt for the carriage and delivery of goods, to be 
carried by sea, for a certain freight. See chapter on Carriage of 
Goods. 

Blasphemy. In law, any false statement or language intended as a revil- 
ing of God. 

Blockade. The actual investment of a place by an enemy with a force 
sufficient to cut off: communication, or make it difficult and hazardous. 

Bona Fide. In good faith ; honest. 



682 GLOSSARY. 

Bond. A written and sealed obligation. See chapter on Bonds. 

Bottomry. A kind of mortgage of a ship, for money borrowed. It 
pledges the ship with extraordinary interest, the lender losing his 
money if the ship be lost. 

Bought and Sold Notes. Memoranda in writing given by a broker 
who has made a sale, to him for whom the broker sells, and to the 
buyer, describing the goods and stating the terms of the sale. 

Breach. In the law of contracts, is the violation of an agreement or obli- 
gation. 

Burglary. The breaking and entering the house of another in the night- 
time, with the intent to commit a felony therein. 

By-laws. Every corporation has a right to make rules for its own 
government; and these are by-laws; sometimes spelled bye-laws. 



c. 

Capias. This is the name of a writ, by which a sheriff is ordered to take 
a person into his custody, and do with him what this writ requires. It 
is of many kinds. 

Caveat. A Latin word, meaning "let him beware." This word is 
principally used in patent law, where one proposing to take out a patent 
subsequently, may file a caveat, that no person may in the mean time 
obtain a patent for the same thing. 

Chancellor. A judge who presides over a court of chancery or equity. 

Charter-party. A contract by which the owner of a vessel lets the 
whole or a part of her to another person for a particular voyage, or a 
particular time, for the conveyance of goods. 

Chattel. This word commonly means goods of any kind, or every species 
of personal property. 

Chattels Real. Interests annexed to or concerning real estate, less 
than a freehold; as a lease for years. 

Check. See chapter on Notes and Bills. 

Chose in Action. The right to demand and recover a debt or money. 
This word is sometimes applied to the evidence of the right, as bills of 
exchange, promissory notes, bank-bills, and other instruments. 

Civil Law. By this phrase is usually meant the system of law of 
ancient Rome. 

Clearance. A certificate which the collector of a port gives to the mas- 
ter of a vessel, stating where it is bound to, and that he has entered 
and cleared the vessel according to law. A vessel found at sea without 
a clearance may be legally taken and brought into some court for adju- 
dication. 

Code. A body of law intended to embrace and regulate all the rules of 
law, as far as they are within its scope. 

Codicil. A little will which adds to or modifies a former will, but does 
not repeal it. See chapter on Wills. 

Collision. The striking together or running against each other of 
vessels. 



GLOSSARY. 683 



Collusion. A fraudulent agreement between two or more persons to 
deprive another of his rights of property. 

Common Carriers. See chapter on Carriage of Goods. 

Common Law. The system of law prevailing in England and this coun- 
try, on the authority of usage, or the decisions of courts, and not on 
statutes. That which depends on statutes is called statute law. 

Commorant. Residing or dwelling in a certain place. 

Competency. The legal fitness of a witness to give evidence on the trial 
of an action. 

Compound Interest. See chapter on Interest. 

Compounding a Felony. The agreement of one who has suffered from 
a theft or other crime, that he will not prosecute the criminal if he 
returns the goods stolen, or compensates for the harm done. Taking a 
reward not to prosecute. 

Condonation. See chapter on Marriage and Divorce. 

Confidential Communications. A counsellor, solicitor, or attorney 
cannot be compelled to exhibit papers or disclose communications received 
by him in his official capacity. 

Confiscate. To appropriate property to the use of the State which has 
been forfeited by some offence. 

Consanguinity. Relationship by blood. 

Consideration. See chapter on Agreements. 

Contingent. That which will come upon the happening of an event 
which may or may not take place. The word is applied to legacies, 
damages, and remainders, which words see. 

Continuance. The adjournment of an action, or the trial thereof, from 
one day or one term to another. 

Contribution. If two or more persons are liable jointly for a debt, and 
one is compelled to pay the whole, or more than his share, he may call 
upon the others to contribute their proportion. 

Conveyance. The transfer of lands or vessels from one person to 
another. 

Conveyancer. One whose business it is to draw instruments of con- 
veyance. 

Copyright. The exclusive privilege of printing, publishing, and selling 
copies of copyrighted books, writings, drawings, and sundry other 
similar things, which the law of copyright describes. 

Coupons. From a French word, meaning to cut. They are little papers 
attached to bonds or other instruments, each one promising to pay the 
interest due on certain days, and it is cut off and presented for pay- 
ment when due. 

Covenant. See chapter on Deeds. 

Cross-examination. Examination of a witness by a party who did not 
call him. A party who calls a witness on a trial examines him in chief; 
and when he has finished, the other party has a right to cross-examine 
him. 



684 GLOSSARY. 



D. 

Damages. The sum claimed or recovered by one who has sustained an 

injury in person, property, or rights, from him who has caused the 

injury. 
Declaration. A specification filed in an action, stating the circumstances 

on which the plaintiff founds his claim. 
Dedication. This word means, in law, an appropriation of land to a pub- 
lic use, either by deed or declaration, or by acquiescence for a sufficient 

time in the public use. 
Deed. See chapter on Deeds. 
Defeasance. An instrument which defeats the force and effect of some 

other instrument, on some condition or contingency. . If a deed be made 

of land, and a deed of defeasance received back, the two together make 

a mortgage. See chapter on Mortgages. 
Demesne. Lands which the owner holds in absolute property, and not 

of another. 
Demise. A conveyance of land. This word is also sometimes used as 

synonymous with death; as the demise of a king. 
Demurrer. A plea or allegation by a party to an action, that, even if the 

facts be truly stated by the other party, they do not give him any cause 

of action, or any good defence. 
Denizen. An alien born, who has letters-patent from the sovereign 

which give him the right of a subject. In this country the word 

"citizen" is almost exclusively used. 
Deposit. A delivery of goods, to be kept for the benefit of the depositor, 

and subject to his order, without compensation. 
Deposition. The testimony of a witness, which has been reduced to 

writing in accordance with the requirements of law. 
Derelict. Deserted ; abandoned. Applied in law principally to vessels 

deserted by their crew, with no purpose of returning 
Descent.. Succession from parents or ancestors. For the rules of de- 
scent, see chapter on the Distribution of Property. 
Detainer. Keeping goods or other property from the owner against his 

will; or holding a person against his will. 
Deviation. In the law of marine insurance, means a departure from or 

variation of the risks insured against by the policy, without sufficient 

cause. 
Disbar. To expel from the bar one who has been admitted to practise 

within it. See Bar. 
Dishonor. In commercial law, means the non-payment of negotiable 

paper when it is due. 
Distress. The process made use of for enforcing the payment of rent, 

or other dues, by the taking of personal chattels from the non-payer. 
Divorce. See chapter on Marriage and Divorce. 
Domain. The estate or land lying about a mansion-house, and attached 

to it. 



GLOSSARY. 685 

Domicile. See chapter on Law of Place. 

Dominant. See Servient. 

Dormant. See chapter on Partnership. 

Dower. A widow has her dower, which means an estate for life in one- 
third part of the lands or tenements of her husband. 

Drawback. An allowance or return made by government to merchants, 
on the re-exportation of certain goods liable to duties and entitled to 
drawback. 

Drawer, Drawee, Drawing. For these words see chapter on Notes 
and Bills. 

Due-bill. A mere acknowledgment in writing of a debt. 

Duress. Personal restraint or compulsion, or fear thereof. 



E. 

Earnest. The delivery and acceptance of a part of the price of goods 
sold, to show that the parties are in earnest and to make the contract 
binding. 

Easement. A right which the owner of one parcel of land has over the 
land of another, for some special purpose, as air, light, way, or 
drainage. 

Embezzlement. Fraudulently appropriating to ono's use property with 
which the party has been intrusted. 

Emblements. The right of a tenant, when his tenancy has ended, to 
return and take and carry away the product of land which he planted 
during his tenancy. 

Eminent Domain. See chapter on that subject. 

Enact. To make a law, or establish by law. Laws usually begin, " Be 
it enacted." See Rules of Order. 

Enfranchise. To give to any man freedom in a society or body politic. 

Entail. An estate is entailed when it is limited or restricted to a partic- 
ular class of issue, and not to the heirs general. 

Equity. A branch or method of remedial justice, administered in courts 
of equity. This was originally administered as the court thought just 
and reasonable in any case ; but the system of equity law is now as well 
denned and exact as that of common law. 

Equity of Redemption. See chapter on Mortgages. 

Escheat. A reverting of lands to the government, on the entire failure 
of heirs of a deceased owner. 

Escrow. A deed which is delivered to a stranger, for him to deliver to 
the grantee therein named, on the happening of certain conditions. 

Estate. This word means, in law, the kind, quantity, and extent of in- 
terest which a person has in real property; as the estate in fee, when he 
owns it absolutely, or an estate for life, or an estate for years. 

Eviction. Depriving a person of the possession of lands or tenements by 
judgment of law. 

Evidence. All the means by which any matter of fact that is alleged 
is established, or is disproved. 



686 GLOSSARY. 



Excise. Tax paid on the retail sale, or on the consumption of, certain 
commodities. 

Experts. Persons who are selected by the parties in a case, to give evi- 
dence on some point by reason of their peculiar knowledge or skill 
therein. 

Extortion. Is, in law, the unlawful taking by an officer, of money, or 
any thing of value not due to him, by an abuse of his office. 

Extradition. The surrender or delivery by one sovereign State to 
another of persons charged with the commission of crime, within the 
jurisdiction of the requesting State. Extradition between our States 
is regulated by the national constitution and laws. We have also 
treaties of extradition with many foreign States. 



F. 

False Imprisonment. An unlawful restraint of a man's liberty, in any 
place, or by any means whatever, even by words only. 

Fee-simple. The largest estate a man can have in land. He can dis- 
pose of it at his pleasure, and when he dies, it goes to his heirs or 
devisees. 

Fee-tail. An heritable estate, which is limited to certain classes of 
heirs of the body. 

Felony. In the law of this country it means generally any great crime. 
In some States it is denned by statutes. 

Feme Covert. A married woman. 

Feudal Law. Sometimes spelled feodal law. A system of tenures, by 
which real property was held in western Europe during the Middle 
Ages, and which has remained there to some extent to the present 
day, although for the most part abolished. 

Fiduciary. A fiduciary estate or property is that which a person holds 
in trust for some other person, who is the beneficiary. 

Firm. This word sometimes means the name under which the members 
of a partnership transact business, and sometimes means the members 
who compose the partnership. 

Flag. * By a statute of 1818, the flag of the United States consists of 
thirteen horizontal stripes, alternate red and white, while the Union 
(or that part of the flag in the corner of it) was to have twenty stars, 
with one star more for every State admitted thereafter. 

Foreclose. Literally, to shut or bar out. It is used in law to describe 
a process made use of for the purpose of putting an end to an equity 
of redemption. 

Foreign Attachment. As commonly used, this means the process by 
which a creditor gets the property of his debtor placed by him in the 
hands of another ; or money due from that other to his debtor. 

Fornication. Sexual intercourse of an unmarried person with a mar- 
ried or unmarried person. 

Franchise. A privilege, or right, conferred by grant from government 
upon individuals. 



GLOSSARY. 687 



Fraud. The unlawful appropriation of the property or rights of another, 
knowingly and designedly. 

Freehold. An estate of inheritance or for a life ; a larger estate than 
an estate for years or at will. 

Freight. Means, in maritime law, either the amount paid for the car- 
riage of goods, from one port to another, or the goods which are so 
carried. 

Fugitive from Justice. A criminal who seeks to escape punishment 
by fleeing from the jurisdiction within which the crime was com- 
mitted. 

Fungible. An article loaned, but to be consumed by the borrower, as 
food, clothing, and the like. 



G. 

Garnishee. One who has in his hands money or property belonging to 
a defendant, and attached by a process of foreign attachment, which 
see. 

Gift. See chapter on Gifts. 

Good-will. The benefit arising from the successful conduct of business 
by a certain person or firm, usually in a certain place; it is a property 
subject to transfer. 

Goods and Chattels. This word in contracts includes, with all per- 
sonal property in possession, cJwses in action, and chattels real. 

Grant. A word which is applicable to all transfers of real property. 

Ground-rent. A rent which the owner of unimproved land reserves 
when he leases the land to be built upon. 

Guaranty. A promise or undertaking to answer for the liability of an- 
other. Guarantor is he who makes the guaranty ; the guarantee is he 
to whom the guaranty is made. 

Guest. A guest at an inn is distinguished from a boarder, in that ho 
makes no contract to remain or pay for a certain time. If he make 
such a contract, he is not a guest, but a boarder, although at an inn; 
and the innkeeper is not liable for loss or injury to his goods without 
the innkeeper's fault. He is so liable to a guest. 



H. 

Half-blood. The degree of relationship existing between those who 
have the same father or the same mother, but not both. 

Hearsay Evidence. A statement which a witness makes of what he was 
told by some other person, or heard him say, but does not know him- 
self. 

Heir. In this country the word is applied to all persons who are called to 
the succession of property. 

Heir-apparent. One who must succeed to the inheritance, provided he 
outlives the ancestor. 



688 GLOSSARY. 



Heir-presumptive. One who will succeed to the inheritance if he 

outlives the ancestor and no person is born before the ancestor's death 

who has a nearer claim. 
Hereditament. Any thing capable of being inherited. 
Highway. A street or road, or way by land or water, which all citizens 

have a right in common to use. 
Homestead. In this country, that portion of land belonging to the same 

owner, which the law exempts from liability to debt. 



I. 

Illicit. That which is forbidden by the law. 

Impeachment. See chapter on Impeachment. 

Impertinent. This word means, in law, matters introduced into any 
proceeding in a suit which are not properly before the court in that 
stage of the proceeding. 

Imposts. Duties or taxes laid upon imported goods or merchandise. 

Indemnity. Compensation for damage suffered, or that which is given or 
promised to a person to prevent his suffering damage. 

Indenture. A written and sealed instrument between two or more per- 
sons, each of whom has a copy. It is distinguished from a deed-poll, 
which is made by one person only. 

Indictment. A written accusation, made by the government through the 
proper officer, and presented as true by a grand jury. 

Indorse, Indorsement, and Indorser (sometimes spelled endorsement). 
See chapter on Bills and Notes. 

Infant. In law, is one under the age of twenty-one years. See chapter 
on Infants. 

Information. A complaint or accusation against a person, charging him 
with some offence, presented to a court having jurisdiction by a proper 
officer. It differs from an indictment in that it does not require the 
intervention of a grand jury. 

Infringement. Li patent law, means the act of violating the right 
secured by a patent or copyright. 

Injunction. A prohibitory writ, issued by a judge or court having juris- 
diction, forbidding the doing of some specified act. 

Inquest. A body of men authorized by law to inquire into certain mat- 
ters. A grand jury is often called the Grand Inquest. 

Insolvency. In this country, means much the same as bankruptcy; in- 
ability to pay one's debts. 

Insurance. By a contract of insurance, the insurers, for an agreed 
premium, promise to indemnify the insured against loss by marine 
perils, or by fire, or accident, or the death of a life-insured. 

International Law. That system of rules which Christian and civilized 
States acknowledge to be binding upon them in their conduct towards 
each other, and to the subjects or citizens of each other. It is founded 
upon moral right, and not upon any controlling and sovereign au- 
thority. 



GLOSSARY. 689 



Intestate. One who dies without a valid will. 

Invention. In patent law, signifies, strictly, the finding out and mak- 
ing of something which is new, or which will accomplish a new use. 

Invoice. In commercial law, signifies a paper which describes the 
merchandise sent by consignors to consignees, with marks or numbers 
designating each package. 

Issue. In the law of descent and distribution of property, includes all 
those who have descended from the common ancestor. In pleading, this 
word means a single and certain point material to the action affirmed by 
one party and denied by the other. 



Jettison. Sometimes called jetsam. The throwing overboard of a part 
of the cargo to relieve the vessel. Sometimes it means the things so 
thrown over. 

Jointure. An estate or interest in lands or tenements which will take 
effect when the husband dies, for the benefit of the wife, and during 
her life. 

Judgment. The final conclusion, or decision, or sentence of the law, 
pronounced by a competent court, as the final result of proceedings 
instituted therein. 

Jurisdiction. The right and power of a court lawfully to hear and 
determine the cause before it, and enforce the execution of their judg- 
ment. 

Jury (grand or petit) . See chapter on Jury. 

Justice. As a title, is used in this country as synonymous with judge. 



Laches. Negligence. 

Landlord and Tenant. See chapter on Leases. 

Lapsed Legacy. A legacy lapses if the legatee dies before the testator; 

that is, it becomes void, unless the legacy is in words of inheritance, as 

to A B and his heirs, in which case it survives to the heirs. 
Law-merchant. The body of rules and usages in force in matters of 

commerce. 
Lease. See chapter on Leases. 
Legitimate Children. Those born in wedlock. 
Levy. This word means to raise, as to levy a tax; or to begin, as to levy 

war. In practice, it commonly means the obtaining the money for which 

an execution has been issued. 
Libel. See chapter on Libel and Slander. 
Lien. A hold which one person has upon the property of another by way 

of security for a debt or claim. 
Limitations. See chapter on Limitations. 

44 



690 GLOSSARY. 



Liquidate. To pay ; to settle an account. Liquidated damages are 
damages agreed upon in anticipation of the breach for which they shall 
be paid. 

M. 

Malfeasance. The doing of some injurious act, which the party had no 
right to do. 

Malicious Prosecution. A civil or criminal suit, instituted maliciously 
and without probable cause. 

Mandamus. A writ issued by the highest court of general jurisdiction in 
a State, ordering some person, corporation, or inferior court to do the 
thing therein specified, which belongs to their office or duty. 

Manifest. A written statement of a cargo of a commercial vessel. It is 
required by law in this country. 

Manslaughter. The killing of another, which is unlawful, but without 
malice aforethought. 

Manumission. Making a slave free. 

Market Overt. An open or public market, legally constituted. It is 
nearly unknown in this country, or rather every store, shop, or place of 
sale is a market overt here. 

Mayhem. Depriving a person with force, and unlawfully, of a member, 
the loss of which makes him less able to fight with an adversary; as his 
eye, hand, finger, or foretooth. The common word maim is derived 
from this, but has a less limited meaning. 

Mayor. The chief executive magistrate of a city. 

Mesne. Middle or intermediate. Mesne profits are those which a man 
draws from an estate from the time that he obtained possession to the 
time when he was evicted, by one having a better title. 

Misdemeanor. This word includes offences punishable by indictment, 
and inferior to felony; such as perjury, conspiracy, libel, and battery. 

Misfeasance. The doing in a wrongful and an injurious way an act which 
might lawfully be done in a proper manner. 

Misrepresentation. This word signifies, in law, a statement which a 
party to a contract makes ■concerning it, and which he knows to be untrue. 

Moiety. The half of a thing. 

Monition'. A process like a summons, used in this country in admiralty 
courts. 

Mortgage. See chapter on Mortgages. 

Mortmain. Literally, a dead hand. In England, real property granted 
or devised to a religious corporation could not pass out of its posses- 
sion by death, because a corporation does not die; and statutes of mort- 
main were passed, impeding such grants or sales. 

Movables. Personal chattels which a man can carry with him wherever 
he goes. 

Mulct. A fine imposed for some offence. 

Municipal. Of or belonging to a city; but municipal law is the name 
given to the system of law of any one nation or State, as distinguished 
from international law. 



GLOSSARY. 691 



Murder. The wilful killing of any person with malice aforethought. In 
most of our States murder is denned as of various degrees, according 
to the circumstances which indicate the character of the malice. 

Mutiny. The unlawful resistance of a superior officer by sedition or 
revolt, in the army or navy, or on board of any vessel. 



N. 

Natural Children. Children born out of wedlock. 

Naturalization. See chapter on Naturalization. 

Navigable. All navigable waters are subject to the use of the public, as 
navigable highways, the soil beneath them remaining the property of 
the riparian proprietors, or of the State. Navigable waters are in this 
country held to be all those capable of floating vessels, boats, logs, 
rafts, or any products of the country through which they flow. 

Nisi Prius. A nisi prius term is that held by a court for the trial of 
cases by a jury. 

Nonage. Minority, or a less age than twenty-one years. See chapter 
on Infants. 

Nonsuit. Usually means an abandonment of his cause by the plaintiff, 
whereupon a judgment is entered against him. 

Notary Public. An officer, appointed variously under the laws of dif- 
ferent States, whose acts are respected by the law-merchant and the 
law of nations, and hence have force out of their own State or country. 

Novation. The substitution of a new debt or obligation for a former 
one, which it extinguishes. 

Nuncupative Will. A will declared orally before witnesses, by a tes- 
tator when dying, and afterwards reduced to writing. 



0. 

Obligation. In law, is much the same thing as a bond. Obligor is he 
who enters into the obligation ; obligee, he in whose favor it is con- 
tracted. 

Ordinance. A rule, or order, or law. Usually applied to the laws of a 
city. 

Ordinary. The name given in some of our States to the officer elsewhere 
called a surrogate or judge of probate. 

Outrage. A great wrong or injury to the person, property, rights, or 
honor of another. 

P. 

Pandects. The name of a compilation of the civil law, made by the 
Emperor Justinian, a.d. 533. It is sometimes called the Digest. 

Panel. Usually means, in law, the body of jurors who are impanelled to 
try a case; also the whole list returned by the sheriff. 



692 GLOSSARY. 

Part Owners. In law, is usually applied to two or more persons, who 
are not partners, but who own a vessel together. 

Partial Loss. See Average. 

Partition. The division of lands, tenements, or hereditaments, goods 
and chattels, between persons who own them as co-proprietors. It is 
usually applied to the division of estates among such persons. 

Partnership. See chapter on Partnership. 

Passport. A document by which the Secretary of State certifies that the 
bearer, who is described therein, is a citizen of the United States. 

Patent, or Letters-patent. Is the grant by the government to some 
person of an exclusive right to make and sell some new and useful in- 
vention made by him. He to whom a patent is granted is called a 
patentee. 

Payment. See chapter on Payment. 

Penitentiary. A prison or place of confinement for convicted criminals. 

Per Capita. A Latin phrase, opposed to per stirpes. Descendants of 
a deceased take per capita when they are all counted as individuals, and 
they take per stirpes, or by right of representation, when a certain number 
of them take together what their deceased parent would have taken. 

Peremptory Challenge. A challenge of a juror, which means a refusal 
to permit him to sit on the trial, allowed to certain criminals without 
showing cause, up to a certain number of jurors. 

Peuils of the Sea. A phrase used in bills of lading, and in policies of 
insurance, which includes all the dangers naturally incident to naviga- 
tion. It has been held in this country to mean and include perils of the 
river. 

Perishable Goods. Goods which easily decay and lose their value by 
being kept. Mainly used in insurance law. 

Perjury. A wilfully false statement, by one who is lawfully required to 
depose the truth, and who is lawfully sworn, made in a judicial pro- 
ceeding, and in relation to a matter that is material to the poiut in 
question. 

Piracy. Any forcible robbery or deprivation, on the high seas, done with- 
out lawful authority, and with wrongful purpose. A pirate is consid- 
ered in law the enemy of the human race, and all men may attack 
him. 

Plea. In conversation, this word is often used as meaning an argument 
in court. In law, it means the special written answer, showing why 
an action is not maintainable. 

Pledge, or Pawn. A bailment or delivery of personal property as secur- 
ity for some debt or undertaking. 

Police. Officers appointed to maintain public peace among persons are 
called officers of the police ; but the word is sometimes used as meaning 
the general care of a city or other place for the same purpose, or the 
rules and ordinances made therefor. 

Policy of Insurance. The instrument whereby insurance is made 
against perils of the sea, or fire, or accident, or on life. 

Poll. \n old word signifying head ; thus a poll-tax is that imposed upon 
the people, at so much a head, equally. 



GLOSSARY. 693 



Posse-comitatus. This means the power of the county. A sheriff 
or other peace officer has a right to call every male person in the county 
to his aid, for the purpose of preserving the public peace, excepting only 
those too infirm of body or mind to assist. 

Post. After. An instrument is post-dated if it has a date subsequent to 
that at which it is actually made. 

Post-marks. Are received in law as evidence of the fact and the time of 
a letter passing through the post-office. 

Pound. The place which is inclosed by public authority, where stray ani- 
mals may be placed, until reclaimed according to law. 

Precept. In law, means a writ directed to some officer, commanding 
him to do something. 

Premium. In the law of insurance, is the consideration paid or promised, 
for the insurance. 

Presumption. An inference of the law from certain facts, of some other 
fact or proposition. 

Prima Facie. Literally, at the first appearance. Prima facie evidence 
is that which is sufficient to establish a fact, unless it be rebutted 
or contradicted. 

Primogeniture. The right of primogeniture gives an estate to the eldest 
son in preference to the other children. It does not exist in the United 
States. 

Principal. See chapter on Agency. 

Privateer. A vessel owned by private individuals, and armed by them, 
but authorized by a belligerent government to carry on maritime war 
against the enemy. 

Prize. A vessel or goods of an enemy taken and detained at sea, by the 
authority of a belligerent power, to be sent into some convenient port 
for adjudication. 

Process. The method which the law uses to compel compliance with the 
commands of a court. In patent law this word signifies the art or 
the method by which a result that is patented is produced. 

Proctor. In courts of admiralty, what an attorney or solicitor is in other 
courts. 

Promissory Note. See chapter on Notes and Bills. 

Prosecutions. The means and method of bringing a supposed criminal 
to justice by courts of law. 

Protest. The act of a notary public, made on the dishonor of negotia- 
ble paper, by which it is declared that all parties to the paper will be 
held responsible to the holder for all damages. Also, in maritime law, 
a statement by the master of a vessel, duly attested by a competent 
person, in which the circumstances of a voyage or an accident by 
which the ship has sustained injury, are fully described. 

Proxy. A person representing another with the right of voting. It is 
also used as the name of the instrument by which a person is so 
appointed and authorized. 

Putative. Reputed or supposed to be. The word is most commonly 
applied to the father of an illegitimate child. 



694 GLOSSARY. 



Q. 

Quash. To overthrow, dismiss, or annul legal proceedings. 

Quo Warranto. The writ or process by which the government inquires 
by what right or warrant a person or corporation holds an office or a 
right,, for the purpose of dispossessing him of it, if not in lawful pos- 
session. 

Quorum. The number of persons belonging to an assembly, society, 
or other body who must be present that the business may be lawfully 
transacted. See Rules of Order in the Treatise on that subject. 

E. 

Ratification. Giving force to a contract made by the person in ques- 
tion but not now in force, or by another man as his agent. 

Real Property. Land and whatever is built upon or growing upon the 
same, whether it be on or beneath the surface or above the surface. 

Receiver. Usually means a person appointed by a court to take and 
hold property in dispute, or the property of a bankrupt. 

Recognizance. An obligation of record which a person enters into 
before a court or officer having authority to receive it, with a condition 
which requires him to do some specified act ; usually, to appear in court 
at a certain time or on a certain event. 

Recoupment. A law term, recently introduced into practice, and mean- 
ing much the same as a set-off against or a reduction from the claim 
of a plaintiff. 

Reference. See chapter on Arbitration. 

Remainder. When a grant or will creates a particular estate in one 
person, which will cease on a certain event, and then gives the estate 
over to another, this latter part of the estate is called the remainder. 
It may be contingent, when the event may never take place; or vested, 
when the remainder-man acquires an immediate interest in the estate, 
although it is to be enjoyed only when the event happens. 

Rent. See chapter on Lease. 

Replevin. That form of action by which a plaintiff seeks to recover the 
possession of personal chattels which have been taken from him unlaw- 
fully. 

Reprieve. The withdrawing of a sentence of a criminal, which delays 
execution for a certain time. 

Rescission. The annulling or dissolution of contracts by mutual consent, 
or by one party because of the breach of the contract by the other. 

Rescue. A forcible deliverance of a prisoner from the custody of the law 
by a third person. 

Residuary Clause. That part of the will by which all of the property 
is disposed of which remains after satisfying devises and bequests. 
Residuary legacy is the remainder of the property after specific be- 
quests or legacies. 



GLOSSARY. 695 



Respondent. In equity law, the person who answers to a bill or com- 
plaint. 

Retainer. Usually means the fee by which a client engages an attorney- 
at-law to do certain business for him. 

Revolt. The endeavor of one or more of the crew of a vessel to over- 
throw the legitimate authority of those in command. 

Right. Means, in law, a claim which is founded upon law and fact. 

Riot. A disturbance of the peace, by three or more persons conspiring 
to raise a tumult, or do some wrong thing, in a violent and turbulent 
manner. 

Riparian Proprietors. Those who own the land upon the shore or 
boundary of the sea, or a lake or a watercourse. Generally a riparian 
proprietor owns the bed of the river adjoining his land, as far as the 
thread or central line of the stream. 

Robbery. The forcible and wrongful taking from the person of another 
of goods or money, and putting him in fear. Threats may be violence 
enough to make the offence robbery. 



s. 

Sale. See chapter on Purchase and Sale. 

Salvage. Property saved from a peril of the sea; or compensation given 

by an admiralty court for service rendered in saving it. 
Scroll. In law, is a mark used in the place of a seal; sometimes spelled 

scrall. 
Seal. An impression upon any impressible substance ; or a piece of paper 

pasted on with intent to make a seal of it. 
Search-warrant. This is addressed to an officer, and requires him to 

search a house or place therein specified, for property alleged to have 

been stolen. 
Seaworthiness. The fitness of a vessel in all respects of materials, 

equipment, and construction, for the service in which it is employed. 
Sedition. Means, in criminal law, the raising of disturbances or commo- 
tions in the State. 
Seisin. Possession of land by one who claims a freehold interest therein. 
Servient. In the law of easements, if a certain estate has a right over 

or against another estate, as a right of drainage through it, the estate 

to which the right is attached is dominant, and the estate against which 

the right operates is servient. 
Set-off. A demand by a defendant, against a plaintiff, by which he 

seeks to reduce or destroy his claim. 
Sign or Signature. The writing of a man's name, as a sign or token 

that he assents to the instrument, or that it is his. 
Slander. See chapter on Libel and Slander. 
Solicitor. Means, in chancery courts, what an attorney does in other 

courts. 
Specialty. A writing sealed and delivered, wherein an agreement or 

obligation is stated. 



696 GLOSSARY. 



Specific Performance. The fulfilment or performance of a contract 
by the party bound to perform it. This a court of equity will compel, 
if sufficient reasons be shown. 

Specification. In patent law, a specific and detailed account of the 
invention to be patented. 

Statute. A law enacted by a legislative power. 

Stoppage in Transitu. See chapter on Sales. 

Subornation of Perjury. The inducing or procuring a person to com- 
mit legal perjury. 

Subpcena. A writ or process summoning a person to appear and give 
testimony, or to submit himself to what the court may order. 

Suffrage. The act of voting ; the vote itself. 

Suit. Synonymous with action at law. 

Sunday. The first day of the week. The legal name of this day is the 
Lord's day. Generally it begins at twelve o'clock on the. night between 
Saturday and Sunday, and Continues twenty-four hours. In some of 
the New England States it begins at sunsetting on Saturday, and ends 
at sunsetting on Sunday. 

Surety. See chapter on Guaranty. 

Surrogate. A term used in some States to denote the officer in other 
States called judge of probate or ordinary. 



Tenant. See chapter on Leases. 

Tender. A legal tender is that which the law of a State makes compe- 
tent to be paid as money, and with the effect of money. 

Tenure. The manner in which or by which a man holds an estate in 
lands. 

Testament. Another name for a will. The testator is one who has 
made a will. 

Title-deeds. Deeds which are evidences of the title of him who owns an 
estate. 

Tort. A private wrong or injury other than the breach of a contract. 

Trade-marks. A mark which a tradesman puts upon goods that he has 
manufactured, by way of symbol, emblem, or sign that they were made 
by him or for him, and that he claims an exclusive right to sell them. 
See chapter on Trade-marks. 

Trespass. Any wrongful act of one person whereby another person is 
injured. 

Trust. Is, in law, a right or a property which one person holds for the 
benefit of another. The person holding it is called the trustee, and he 
for whose benefit it is held is called the cestui que trust, or, better, 
the beneficiary. 

Trustee Process. A process by which goods or credits of a debtor in 
the hands of a third person may be reached by an attaching creditor; it 
is similar to the garnishee process. See chapter on Recovery of 
Debts. 



GLOSSARY. 697 



u. 

Usury. See chapter on Interest and Usury. 



Vagabond, or Vagrant. One who wanders about idly, and with no 

home, and begs, and will not work. 
Verdict. The unanimous decision made by a jury and announced to 

the court. 
Voucher. The written evidences of the truth of entries or charges. 



w. 

Waiver. The abandonment of a right, or a refusal to accept it. 

Ward. See chapter on Guardian and Ward. 

Warranty. See chapter on Sales. 

Way. A right of way is the privilege which some person, or a certain 
description of persons, have of going over another man's land. 

Will. See chapter on Wills. 

Witness. One who testifies in court under oath or affirmation to what 
he knows. Also one who signs his name to an instrument, in evidence 
that it was executed in his presence ; he is then called an attesting or 
subscribing witness. 

Wreck. Commonly used as meaning a vessel that is cast away. In 
maritime law, it means the vessel or goods cast away on land by the 
sea, or found at low water, between high and low water mark. 

Writ. A written precept issued by a competent court in the name of 
the State, commanding the person or officer to whom it is addressed to 
do what is required therein. It is usually attested by a judge, and 
countersigned by the clerk of his court. 



INDEX. 



ACADEMY, military, 80. 

naval, 80. 
ACCEPTANCE, rights and duties of the acceptor, 507. 
acceptance for honor, 508. 

(See Notes of Hand and Bills of Exchange.) 
ACKNOWLEDGMENT, how it may be made, 276. 
ACQUISITION OF PROPERTY, may be in six ways : by inheritance? 
by will; by purchase and sale; by hiring; by gift; by finding, 252. 
ADMISSION OF NEW STATES, 94. 
AGENCY, the law of, 512-525. 

the acts of an agent are the acts in law of the principal, 512. 
a principal is responsible for the acts of his agent, when he has 
given his agent authority, or when he has led those who dealt 
with him to believe that he had authority, 513. 
how a general agent differs from a special agent, 513. 
the effect and importance of this difference shown, 513. 
how authority may be given to an agent, 514. 
if given under seal, it authorizes the agent to make a deed for the 

principal, 514. 
when given by a written instrument, this is commonly called a power 

of attorney, 514. 
authority may be given orally, 514. 

one employed by another to act for him in transacting a business, 
has authority to do for his principal all that is usual in that busi- 
ness, 514. 
effects of this rule shown, 514. 

how far the principal is answerable for the fraud of the agent, 514. 
one repeatedly employed to do certain things may be believed by 

other persons to have the authority of his employer, 514. 
how an agency, or the act of an agent, may be confirmed by adop- 
tion and ratification, 514. 
all mercantile agency is governed by mercantile usage, 515. 
the distinction between factors and brokers, 515. 
a cashier or other official person has all the authority necessary or 
usual in the transaction of his business, 516. 



700 INDEX. 



AGENCY— Continued. ' • 

the extent and duration of an agent's authority, 516. 

an authority to sell implies an authority to sell on credit only where 
that be usual, 516. 

the same rule prevails as to authority to sell with warranty, 517. 

general authority to transact business does not authorize an agent to 
accept or indorse bills or notes, 517. 

if an agent make a false statement, believing it to be true, and the 
principal knows it to be false, and does not correct it, this is the 
fraud of the principal, 517. 

the death of the principal operates a revocation of authority, 517. 

qualifications of this rule, 517. 

revocation generally is always in the power of the principal, 517. 

not so, if he has given a power coupled with an interest, 517. 

what this means, 517. 

marriage of a woman revokes a power given by her when single, 
517. 

a bank exercising due care in the choice of a notary or other agent 
is not liable for the want of care or skill of such agent, 518. 

the execution of authority by an agent, 518. 

the authority must be conformed to with strict accuracy in all mat- 
ters of substance, 518. 

liability of an agent, how it may be caused, 519. 

an agent makes himself liable by exceeding his authority or depart- 
ing from it, 519. 

a party with whom an agent deals cannot hold him personally, if he 
knew that the agent exceeded or departed from his authority, 519. 

the rights of action growing out of an agency, 519. 

where an agent intrusted with goods sells the same without author- 
ity, 519. 

an undisclosed principal may show that the nominal party was his 
agent, and then sue on the contract, 519. 

so an undisclosed principal, when discovered, may be sued on the 
contract, 519. 

how a principal is affected by certain acts of his agent, 520. 

a principal is liable, although personally innocent, if his agent makes 
a fraudulent representation in transacting business for him, 520. 

a principal cannot lessen or escape liability by calling himself an 
agent, 520. 

a principal can take no benefit from his agent's fraud, 520. 

payment to an agent of money due to a principal binds the princi- 
pal only when made in the regular course of business, 520. 

and only when made to an agent who * is authorized to receive the 
money, 520. 

a principal is not responsible for the criminal acts of his agents, 
unless he commanded them, 521. 

mutual rights and duties of principal and agent, 521. 

an agent who departs from his instructions is liable to his principal 
for the consequences, 521. 



INDEX. 701 



AGENCY — Continued. 

usage has great influence in determining the effect of his instructions, 

but cannot prevail over express instructions, 521. 
no- attorney or agent can appoint a sub-attorney or sub-agent, unless 
authorized expressly, or by the reason and necessity of the case, 521. 
an agent must use, in the affairs of his principal, the care and skill 

■which a reasonable man would use in his own, 522. 
an agent is bound to the utmost good faith, 522. 
for a breach of duty an agent is responsible for the whole injury 

sustained by his principal, 522. 
if an agent embezzles his employer's property, the employer may 

reclaim it wherever he can trace it, 522. 
if the property of the principal be mixed indistinguishably "with the 

agent's ow 7 n goods, how the law applies to that case, 522. 
an agent or trustee, to sell property, cannot buy it himself; nor, if 

employed to buy, can he buy of himself, 522. 
agents must keep an exact account of their doings, 523. 
what interest will be allowed on the balances due from an agent or 

trustee, 523. 
the law as to the revocation of agency, by principal or agent, 523 
insanity revokes authority, 523. 
factors and brokers, law of, 523. 
commission-merchants, law of, 523. 
effect of a guaranty by a commission- merchant, 523. 
how far a factor who is intrusted with goods may pledge them, 5?A. 
an agent or factor must obey all instructions; and wishes of his em- 
ployer, sufficiently expressed, have the force of instructions, 524. 
how far a factor or commission-merchant, who charges no guaranty 

commission, is liable to his principal, 524. 
when a factor or broker can claim their commissions, 525. 
the distinction between a foreign and a domestic factor, and the law as 

to each, 525. 
forms of power of attorney and proxies, 526-531. 
AGRICULTURAL IMPLEMENTS, manufactures of, 70. 
ALABAMA, boundaries, extent, constitution, history, and condition 
of, 133. 
the right of suffrage by the constitution of, 191. 
abstract of the statute law of husband and wife, and of homestead, 212. 
ALASKA, Territory of, boundaries, extent, history, and condition of, 162. 
ALTERATIONS in a written instrument, effect of, 278. 
AMENDMENTS TO THE CONSTITUTION, 1 to 15, 34-37. 
provided for by the constitution, 96. 
how made, 97. 
when made hitherto, 98. 
APPRENTICES, law concerning, 207-209. 

duties of an apprentice, and of a master, 207. 

one who seduces an apprentice from the service of his master is 

liable for damages, 208. 
forms of indenture of apprenticeship, 209. 



702 INDEX. 



APPROPRIATION OF PAYMENT, law of, 467. 
ARBITRATION, law of, 551-556. 

of the submission or reference, 551. 

it is essential to a valid award that it conforms to the terms of the 

submission, 551. 
an award cannot affect strangers, or those who are not parties to the 

submission, 551. 
an award must not embrace matters not included in the submission, 

551. 
an award will be construed liberally, 552. 
an award must" be distinct and certain, 552. 
an award must require only what can be done, 552. 
an award must be reasonable, 552. 
an award must be final and conclusive, 553. 
an award may be open to objection in a separable part without being 

void in the whole, 553. 
if an award cover " all demands and questions," a party may still 

show that some particular demand was not considered or included, 

553. 
no especial form of an award necessary, 553. 
any directions contained in the submission must be obeyed by the 

arbitrators, 553. 
an award, not objectionable for any thing it contains, may still be 

set aside for irregularity in the conduct of the arbitrators, 554. 
instances of irregularity which will avoid an award, 554. 
an umpire, how he may be chosen, 554. 
a submission (or reference) may be under a rule or order of court, 

554. 
a revocation of a submission by one of the parties; when and how 

it may be made, 554. 
a submission under a rule of court cannot be revoked by either party 

without the consent of the other, 554. 
a submission out of court can be revoked by either party at any 

time before an award, 555. 
effect of such a revocation, 555. 
when the death of a party causes a revocation, 555. 
when bankruptcy or insolvency causes a revocation, 555. 
after an award is fully made, neither party without the consent of 

the other, and neither one nor all the arbitrators, have any control 

over it, 555. 
a submission, or reference, may be made by an exchange of bonds, 

556. 
forms of submission and of awards, 556, 557. 
ARBITRATORS. Same as referees. (See Arbitration.) 
ARIZONA, Territory of, boundaries, extent, history, and condition of, 160. 
ARKANSAS, boundaries, extent, constitution, history, and condition of, 

142. 
the right of suffrage by the constitution of, 191. 
abstract of the statute law of husband and wife, and of homestead, 212. 



INDEX. 703 



ARTICLES OF CONFEDERATION, a most imperfect instrument, from 
the jealousies of the States, and the division of opinions and in- 
terests, 13. 
the nearest approach to a national government then possible, and 
an important step in that direction, which made the national con- 
stitution possible, 13. 
defects of and objections to, 13. 
ATTAINDER, bill of, prohibited by the constitution, 182. 
what this bill is, 182. 
reasons for this provision, 182. 
AWARD, of referees or arbitrators. {See Arbitration.) 

B. 

BAIL, excessive, prohibited by the constitution, 180. 

BALANCE OF POWER between the States may be much effected hj 

the admission of new States, 75. 
BANKRUPTCY, law of, 605-625. 

voluntary bankruptcy, 606. 

assignments and assignees, 608. 

of the debts of the bankrupt, 611. 

the attendance and examination of bankrupts, 612. 

the distribution of the bankrupt's estate, 613: 

the bankrupt's discharge and its effects, 615. 

preferences and fraudulent conveyances, effect of, 618. 

involuntary bankruptcy, 619. 

superseding the bankrupt proceedings by arrangement, 621. 
BED AND BOARD, divorce from, 245. 
BILLS OF LADING have a kind of negotiability, 481. 
BILLS OF EXCHANGE. (See Notes of Hand and Bills of Ex- 

CHANGE.) 

BONDS, law of, 449, 450. 

what a bond is, 449. 

the essentials of a bond, 449. 

meaning and effect of the usual provisions of a bond, 450. 

forms of bond, 450-456. 
BOND OF MATRIMONY, divorce from, 245. 



CALIFORNIA, boundary, extent, constitution, history, and condition of, 
148. 
the right of suffrage as denned by the constitution of, 148. 
abstract of the statute law of husband and wife, and of homestead, 
212. 
CANALS, how far Congress may construct them, 60-63. 
CARPETS, manufacture, of, 69. 



704 INDEX. 



CARRIAGE OF GOODS AND PASSENGERS, law of, 558-575. 

distinction between private carrier and common carrier, 558. 

private carrier, who is one, and what are his duties and his rights, 
558. 

common carrier, who is one, 559. 

obligations and responsibilities of a common carrier, 559. 

truckmen or draymen, expressmen, porters, stage-coaches, when and 
how far they are common carriers, 559. 

railroad companies and steam packets, when they are common car- 
riers, 560. 

ordinary sailing vessels, when they are common carriers, 560. 

boatmen on canals and rivers, and ferrymen, when they are com- 
mon carriers, 560. 

a common carrier may be a wharfinger, warehouseman, or a for- 
warding merchant; when he is to be considered in one character 
and when in the other, 561. 

bills of lading, usage and law of, 561. 

receipts in the nature of bills of lading, by expressmen and others, 
law of, 562. 

obligation of a common carrier to receive and carry goods and pas- 
sengers, 562. 

obligations of a common carrier as to the passengers he carries, 563. 

obligations of a common carrier as to the delivery of the goods he 
carries, 564. 

difference between common carriers by land and those by water, as 
to the notice to be given of their arrival, 565. 

when a third person claims goods by title adverse to consignor and 
consignee, 566. 

the lien of the common carrier on the goods he carries for his com- 
pensation, 566. 

the liability of the common carrier exceptional and peculiar, 567. 

he is liable for any loss of or injury to the goods he carries, unless 
the same be caused by the act of God or of the public enemy, 
567. 

he is liable for loss by fire, unless it be caused by lightning, 567. 

liable for loss caused by his negligence after fire, tempest, or inun- 
dation, 567. 

liable for loss caused by theft, robbery, or violence of any kind, 
567. 

the general principles of agency apply to a common carrier, 566. 

when a carrier is liable as carrier beyond his own route, 568. 

when he is liable beyond his own route only as a forwarder and 
for his negligence, 568. 

a carrier of passengers is under a less liability for them than for 
goods, 568. 

no proof of care will excuse a carrier for loss of or injury to the 
goods he carries, 568. 

but proof of all possible care on his part will excuse him for in- 
jury to passengers, 568. 



INDEX. 705 



CARRIAGE OF GOODS AND PASSENGERS— Confirmed. 

a carrier may give a notice limiting his liability for loss or injury, 
569. 

such notice must be reasonable in its extent, 569. 

it must be brought home to the knowledge of the sender or the 
passenger in such wise that his assent may be inferred, 569. 

putting such notice on a receipt for goods or on a ticket for a pas- 
senger, is not always enough, 569. 

any fraud of the sender or passenger upon the carrier extinguishes 
his liability, 570. 

a carrier cannot make a valid bargain to protect himself against 
a liability for his own misconduct, 570. 

of the liability of the carrier for goods carried by passengers, 570. 

liable only for what may be fairly considered as a passenger's bag- 
gage, 570. 

whether and how far he is liable for money, jewels, watches, arms, 
or tools, carried in a trunk, 571. 

not liable for a trunk containing goods carried as merchandise, 
571. 

the fare paid by the passenger pays for carrying his baggage, 572. 

a carrier is liable only for baggage delivered to him or his servants, 
and placed under his or their care, 572. 

a traveller and his wife may give testimony as to their baggage and 
its value, 572. 

when a carrier is liable for the wilful wrong-doing of his servants, 
573. 

when a party injured is in fault, the carrier may still be liable, 
573. 

when a carrier is liable for injury to passengers carried gratui- 
tously, 573. 

when a railroad company is liable for fire set to buildings along 
the road, 573. 

forms of receipts or bills of lading by steam-packet companies, 
573. 

forms of receipts by express companies, 574, 575. 
CASHIER OF A BANK, his rights, duties, and responsibilities, 515. 
CENSUS, the constitution required an enumeration of the people to be 
made within three years after the first meeting of Congress, 98. 

census a Roman institution, and a Roman or Latin word, 98. 

in Rome, the only purpose of a census was to classify the people for 
political purposes, 98. 

that the main purpose in this country; but now the census is made 
the means of acquiring a vast variety of most important infor- 
mation, 99. 

annexed to the section concerning the census are tables enabling 
the reader to compare this country with other countries in Eu- 
rope, Asia, and Australia, in regard to the extent and density 
of population, railroads, telegraphs, the mercantile navies of the 
world, and the debts and revenues of the various nations, 101-106 
45 



706 INDEX. 



CHECKS. (See Notes of Hand and Bills of Exchange.) 

COBB, GENERAL, anecdote of, 20. 

CODICILS, what they are, and law of, 258. 

COINS, the money of the world, 85. 

COLLATERAL PROMISE, how it differs from an original promise, 

463. 
COLONIES OF NORTH AMERICA, from their beginning exercised 

self-government, 8. 
COLORADO, Territory of, boundaries, extent, history, and condition of, 

159. 
COLUMBIA, District of, 163.. 
COMMERCE, power to regulate among the States, 58. 

distinction between power to regulate and power to create, 58. 
power of Congress over new instruments of internal domestic com- 
merce, 59. 
COMMISSION-MERCHANTS, law of, 523. 

of a guaranty by commission-merchants, 523. (See Agency.) 
COMMON CARRIER. (See Carriage of Goods and Passengers.) 
COMPARISON of the present condition of this country with what it 

was when the constitution was formed, 165. 
CONDONATION, in the law of divorce, meaning of, and effect of, 246. 
CONFEDERATION, Articles of, adopted by the Continental Congress in 

1777, and ratified by the States in 1778, 1789, and 1781, 12. 
CONGRESS, from nine States, in 1765, 10. 

Continental, in Philadelphia, in 1774; in 1775 appointed Wash- 
ington commander-in-chief of the continental army, and on the 
4th of July, 1776, declared our independence, 11. 
appointed a committee to prepare a form of confederation for the 

colonies, 11. 
resolution for a convention of delegates to revise the Articles of 

Confederation, 21. 
of the United States, first meeting of, 24. 
has the power of admitting new States, 94. 
precautions concerning their admission, 95. 
a republican form of government guaranteed, 95. 
this guaranty means that all the States guarantee to each State that 
every State in the Union shall have a republican form of govern- 
ment, 95. 
by the admission of new States, how the balance of power between 
the States is affected, 95. 
CONNECTICUT, convention of, adopted the Constitution of the United 
States, by a large majority, 23. 
boundaries, extent, constitution, history, and condition of, 113 
the right of suffrage by the constitution of, 192. 
abstract of the statute law of husband and wife and of home- 
stead, 214. 
CONSIDERATION of negotiable paper, 493. 
CONSTITUTION, what a constitution is, 3. 

imitations of a constitution in Europe and South America, 3. 



INDEX. 707 



CONSTITUTION— Continued. 

a supreme law which the nation itself makes to control its political 

servants, as the law of the land, 3. 
the British, how it differs from our own, 4. 
CONSTITUTION OF THE UNITED STATES, 25-33. 
amendments of, 1-15, 34-37. 
history of, 5. 

events before the War of Independence, 5. 
events from the beginning of the War of Independence to the 

formation of the constitution, 10. 
early efforts of the far-sighted and patriotic to promote union, 10. 
what its purpose was, 15. 

formation of, commissioners from five States met in 1786, 16. 
agreed to, in convention, on the 17th of September, 1787, 21. 
comments upon, 38. 
what this constitution is, 38. 
it is a compact, and more than a compact, and both a social and a 

federal compact, 38. 
the principle which underlies the same, 40. 
gives to the national government all the strength it needs or could 

use, as a central national government, reserving to each State its 

due powers, 43. 
great danger of, by the abuse of power by a majority, and how this 

is provided against by the constitution, 43. 
reconciliation of State rights and national sovereignty, 44. 
the distribution of power in, 47. 
the executive power, 48. 
the legislative power, 51. 
why this power is vested in two bodies, 51. 
of the senate, 53. 
how senators are chosen, 54. 

their term of six years was a compromise between extreme views, 54. 
the senate holds an important check over the President in matters 

of appointment and of treaties, 55. 
the house of representatives, 55. 
how they are chosen, 55. 

how they are apportioned among the States, 56. 
privileges of senators and representatives, 56. 
freedom of arrest, and the reason of this privilege, 56. 
not to be questioned elsewhere for speech in either house, and the 

reason for this privilege, 57. 
power to regulate commerce with foreign nations, 57. 
power to regulate commerce among the States, 58. 
how far the power to regulate gives the power to create commerce, 58. 
railroads, their extent, and the constitutional questions to which 

they give rise, 59. 
the distinction between the legislative, the executive, and the 

judicial functions* reasons for and wisdom of, and history of in 

practice, 71. 



70S INDEX. 



CONSTITUTIONS OF THE SEVERAL STATES, 107-156. 
CONVENTION, for forming a constitution of the Union in 1787, 21. 

letter from the president of, to Congress, accompanying the con- 
stitution, 22. 
CORPORATION, how the deed of, should be made, 274. 
COTTON GOODS, manufactures of, in the United States, 68. 
CRUEL AND UNUSUAL PUNISHMENT, prohibited by the con- 
stitution, 181. 

reason for this provision, 181. 
CRUELTY, a ground of divorce, 246. 
CUTLERY GOODS, manufactures of, in the United States, 69. 

r>. 

DAKOTA, Territory of, boundaries, extent, history, and condition of, 

159. 
DAMAGES, what a grantee with warranty may recover when he loses 

his land by a defect of title, 280. , 
DATE, a deed having none, takes effect from delivery, 278. 
DEBASEMENT OF THE COIN. {See Money.) 
DEED BY INDENTURE, what it is, 283. 
DEED-POLL, what it is, 283. 
DEEDS CONVEYING LAND, law of , 273-287. 
what is essential to such deeds, 273. 
in this country lands can be transferred only by a deed which is 

signed, sealed, acknowledged, and delivered, 273. 
deeds should always be recorded, 273. 
what the word " deed " means in law, 273. 
grantor should write his name with ink, 273. 
if he cannot write his name, he may make his mark, 273. 
not safe to trust to signature in pencil, 274. 
the name of the grantee should be written in the proper place, in 

ink, 274. 
sometimes written in pencil, to be erased, and a new name inserted; 

but this an unsafe practice, 274. 
how the deed of a corporation should be executed, 274. 
safest way to adhere to established forms and phrases in drawing 

and executing instruments, 274. 
what a seal is in different States, 274. 
delivery of the deed is essential, 275. 
delivery as an escrow, what this delivery is, 275. 
where the grantor puts the deed in the hands of a third person, to 

be given to the grantee after the death of the grantor, 275. 
a deed to a married woman may be delivered to her or to her 

husband, 275. 
when delivered to the grantee, there must be assent and acceptance 

on his part, 275. 
deeds should be attested by witnesses, who should see the grantor 

sign, 276. 



INDEX. 709 



DEEDS CONVEYING LAND— Continued. 

what the witnesses must remember when called on to testify, 276. 

witness may be a minor, 276. 

witness should have no interest in the deed, 276. 

a deed may be valid between the parties, although not acknowledged; 

but cannot generally be recorded without acknowledgment, 276. 
what an acknowledgment is, and how it may be made, and what is 

its effect, 276. 
whether all the grantors should acknowledge the deed, 277. 
how one who executes the deed for another should acknowledge the 

deed, 277. 
a deed should be dated ; but if it have no date, it will take effect 

from delivery, 277. 
the necessity and effect of recording, 277. 
the usual clauses in deeds, 278-283. 
it is customary to recite in deeds the consideration under which they 

are made, 278. 
this is usually the price paid for them, but may be love and affec- 
tion, or any other cause, 278. 
it is customary but not necessary to put in one dollar, or some other 

nominal sum, 278. 
the seller is not bound by his receipt for the money contained in the 

deed, 278. 
he may still sue for the money, but cannot say the deed is void for 

non-payment, 279. 
usual words of a conveyance, 279. 

the description of the land should be minute and accurate, 279. 
a conveyance to the grantee without words of inheritance gives the 

land to him for his life only, 279. 
what the words of inheritance are, 279. 
deeds end by the clause of execution; what it is, 279. 
what a quitclaim deed is, and what it effects, 279. 
what a warranty deed is, and what it effects, 279. 
what clauses make a deed to be a warranty deed, 280. 
these clauses usually contain four different agreements, warranties, 

or covenants, 280. 
nicety of the law as to their exact meaning and operation, 280. 
what damage a grantee recovers who is obliged to fall back on his 

warranty; different rules in different States, 280. 
how incumbrances on the estate may be inserted, 280. 
the covenants of the warranty pass to the grantee, 281. 
sometimes an estate is conveyed on a condition; but this is a very 

catching thing, 281 . 
possible effect of the word "condition" in any deed but a mort 

gage, 281. 
if a married woman holds land, husband and wife, joining in one 

deed, may convey it, 282. 
in some of our States she may do this by her own deed, 282. 
how a married woman may release her right of dower or of home- 
stead, 282. 



710 INDEA. 



DEEDS CONVEYING LAND— Continued. 

a bargain for land or real property, if not written, has no force, 282. 

a deed conveying land may be either a deed-poll or an indenture, 282. 

deeds conveying land are of a vast variety, and hence a great variety 
of forms are given, 282. 

mortgages of land, 284. 

the purpose of a mortgage is to give to a creditor the security of 
property, 284. 

a mortgage is usually a deed conveying the land to a creditor as 
fully as if it were sold to him outright; but with a condition 
inserted, that if the grantor shall pay to the grantee a certain sum 
of money at a certain time, the deed shall be void, 284. 

how this condition is usually expressed, 284. 

mortgages are sometimes made to secure a promissory note, and 
sometimes a bond, 284. 

the promise, condition, or agreement, which converts a conveyance 
of land into a mortgage, usually is, and always should be, con- 
tained in the deed itself, 284. 

but the instrument of defeasance maybe a separate instrument, 284. 

objections to this, and questions which have arisen in relation to it, 
285. 

whether courts can relieve the grantor when the condition or defea- 
sance was not written in any way, 285. 

great diversity of the decisions on this point; the rule prevailing in 
the Supreme Court of the United States given, 285. 

the mortgagor has strictly no right to retain possession of the land, 
unless this is provided for in the mortgage, 286. 

a mortgagor has a right to redeem, or an equity of redemption ; 
what this right is, 286. 

a mortgagor may give to the mortgagee a power of sale, which de- 
feats or qualifies the right to redeem, 286. 

what this power of sale is, and what its effect is, 286. 

the time limited for the redemption begins from the day when the 
mortgagee takes possession of the land for the purpose olforeclo" 
ing the mortgage, 287. 

in what manner the mortgagee may enter to foreclose, 287. 

what a mortgagor must do to redeem his mortgage, 287. 

a common agreement is, that the mortgagor shall keep the premises 
insured; this agreement should be inserted in fullm the deed, 287. 

if a mortgagor erects buildings on the mortgaged land, the effect of 
it, 287. 

if the mortgagee puts buildings on the land, the effect of it, 287. 

forms of deeds of conveyance, 288-356. 
DELAWARE, convention of, adopted the constitution at once, unani- 
mously, 23. 

boundaries, extent, constitution, history, and condition of, 117 

the right of suffrage by the constitution of, 192. 

abstract of the statute law of husband and wife, and of homestead, 
215. 
DISHONOR OF NEGOTIABLE PAPER, what it is, and effect of, 494. 



INDEX. 711 



DISSOLUTION OF PARTNERSHIP, law concerning, 534. 
DISTRIBUTION OF THE PROPERTY OF AN INTESTATE, deter- 
mined in the several States by the statutes of descent or of inheri- 
tance, 253. 

the difference between the law of this country on this subject and 
the law of England, 253. 

provisions as to the inheritance of the real property of an intestate, 
253, 254. 

distribution of the personal property of an intestate, 254. 

how far similar to that of real estate, 254. 
DISTRICT OF COLUMBIA, boundaries, extent, history, and condition 

of, 163. 
DIVORCE, law of, 245. 

of two kinds: divorce from the bond of matrimony, and from board 
and bed, 245. 

from the bond of matrimony annuls the marriage altogether, 245. 

whether the guilty party may marry again, 245. 

powers of the court as to terms of separation, 245. 

a divorce from board and bed separates the parties, but leaves them 
still married, 245. 

the law of, in England, 245. 

history of the law of, in this country, 245. 

what desertion or abandonment is a ground of divorce, 246. 

cruelty a ground of divorce, 246. 

condonation, meaning of and effect of, 246. 
DOMESTIC RELATIONS, rights and duties growing out of, 201. 

parent and child, the law of, 201. 

father's liability for minor child, 201. 

infants or minors, law concerning, 202. 

infants, who are, in law, 202. 

on what day persons become of age, 202. 

contract of an infant, if not for necessaries, voidable, 202. 

infant may ratify and confirm it, and how, 202. 

if an infant buys property, an act of ownership after majority con- 
firms the purchase, 203. 

continued possession of the property has the same effect, 203. 

infants' contracts for necessaries not voidable, 203. 

what are necessaries for an infant, 202, 203, 204. 

a note given by an infant, when voidable, 204. 

an infant is liable for torts, or wrongs or offences, 204. 

so if he fraudulently represented himself as of age, 204. 

an infant's contract is voidable only by himself, 205. 

form of an infant's new promise or confirmation, 205. 
DOMESTIC MANUFACTURES, increase of, 70. 
DOMICILE. (See Law of Place.) 
DORMANT PARTNER, who is, 533. 

DRAFTS. (See Notes of Hand and Bills of Exchange.) 
DRAWER AND DRAWEE, of a bill of exchange. (See Notes of 
Hand and Bills of Exchange.) 



712 INDEX. 



E. 

EMINENT DOMAIN, law of. It is the right of the sovereign to take 
private property for public purposes, 251. 
the sovereign can take private property for public purposes only 

from public necessity, and by making full compensation, 251. 
limits to the right of compensation, 252. 
the most common exercise of eminent domain, 252. 
ERASURES, in a written instrument, effect of, 278. 
ESCROW, what it is, and law of, 375. 
EXCESSIVE BAIL, prohibited by the constitution, 180. 

reason for this provision, 180. 
EXCESSIVE FINES, prohibited by the constitution, 181. 

reasons for this provision, 181. 
EXCISE, what it is, 64. 

EXECUTION, clause of, in a deed, how it should be made, 279. 
EXECUTOR OR ADMINISTRATOR, when he is liable on a promise 

to pay out of his own estate a debt of the deceased, 462. 
EXECUTORS AND ADMINISTRATORS, the law respecting, and who 
are, 265-273. 
a testator may generally direet that his executors or trustees should 

not give bonds, 266. 
act as the personal representatives of the deceased, 266. 
judge of probate, sometimes called surrogate, ordinary, register 

or registrar of wills, judge of the Orphan's Court, &c, 266. 
an appeal may be taken from his decree to the Supreme Court, 266. 
how an executor or administrator indorses negotiable paper of the 

deceased, 266. 
how they submit a disputed question to arbitration, 266. 
when they can execute the contract of the deceased as the deceased 

could have done himself, 266. 
that the entire right of representation survives to the others on the 

death of one of several executors, 267. 
duties of an executor arranged according to law, 267. 
when an executor or administrator finds an estate to be insolvent, 

what he should do, 267. 
forms for executors and administrators, 268-273. 
EXEMPTION LAWS, 649. 

EXPRESSMEN. (See Carriage of Goods and Passengers.) 
EX POST FACTO LAW, prohibited by the constitution, 182, 
meaning of this phrase, 183. 
reasons for this provision, 183. 

F. 

FERRYMAN. (See Carriage of GoOds and Passengers.) 
FINES, excessive, prohibited by the constitution, 181. 
FIRE INSURANCE. (See Insurance against Fire.) 






INDEX. 713 

FLORIDA, boundaries, extent, constitution, history, and condition of, 
144. 
the right of suffrage by the constitution of, 192. 
abstract of the statute law of husband and wife, and of homestead, 
215. 
FOREIGN AND INLAND BILLS OF EXCHANGE, distinction be- 
tween them, 490. 
the different States of the Union are, in mercantile law, foreign 
countries as to each other, 490. 
FOREIGN ATTACHMENT, 648. 
FRANKLIN'S MOTTO: " Join or die," 10. 

FREEDOM OF SPEECH AND OF WRITING, right to, secured by 
the constitution, 185. 
reasons for this provision, and effect of, 185. 
every man speaks and publishes on his own responsibility, 185. 
the law of libel, 186. 
the law of slander, 186. 

when and how far the truth of the words spoken or published is a 
defence, 187. 

G. 

GARNISHEE PROCESS, 648. 

GEORGIA, convention of, adopted the constitution of the United State* 

at once, unanimously, 23. 
boundaries, extent, constitution, history, and condition of, 124. 
the right of suffrage by the constitution of, 192. 
abstract of the statute law of husband and wife, and of homestead, 

215. 
GLOSSARY OF LAW TERMS IN COMMON USE, 676-697. 
GROWTH OF THIS COUNTRY, and the dangers which await us, 165. 
GUARANTY, law of, 457-462. 
who is a guarantor, 457. 

no special form of words necessary to create a guaranty, 457. 
a guaranty of a debt may be enforced, although the original debt 

cannot be, 457. 
contract of, is construed strictly, 457. 
what a guarantor who pays the debt of his principal may demand, 

457. 
when there must be a consideration for a guaranty, 457. 
what the consideration may be, 458. 
when the acceptance of a guaranty is necessary, 458. 
how a guarantor is affected by a change in the liability of the prin- 
cipal, 458. 
surety and guarantor often used as if they meant the same thing , 

how they differ, 458. 
effect on the guarantor of the extension by law of the obligation foi 

which he is liable, 459. 
when a guaranty is revocable, 459. 



714 INDEX. 



GUARANTY— Continued. 

what indulgence a creditor may give his debtor without discharging 

his guarantor, 459. 
when a surety requests a creditor to proceed against a principal 

debtor, 459. 
when a creditor gives time to his debtor, how this affects the 

guarantor, 459. 
when a guarantor becomes liable, what notice he shall have, 459. 
where a guaranty purports to be official, who is liable, 460. 
a guarantor is discharged by any fraud practised upon him, 460. 
forms of guaranty, 460-462. 
GUARDIAN AND WARD, the law concerning, 205, 207. 

H. 

HABEAS CORPUS, the writ of, secured by the constitution, 171. 
the legal meaning and effect of this writ, 172. 

if this writ be properly executed, it makes illegal imprisonment im- 
possible, 172. 
illustrated by reference to France and England, 172. 
what is illegal imprisonment, 172. 
provisions of the laws of Congress and of the States to carry into 

effect the writ of habeas corpus, 173, 174. 
method of obtaining this writ, 174. 
what the writ is now commonly used for, 174. 
form of a writ of habeas corpus, 175. 
HOLDER OF NEGOTIABLE PAPER, his rights and duties, 494. 
HOMESTEAD, provisions respecting, by the statutes of the several 

States, 212-234. 
HONOR, acceptance or payment for, 508. 

HUMPHRIES, Colonel, letter to Washington in 1797, and Washing- 
ton's reply, 20. 
HUSBAND AND WIFE, rights and powers of, at common law, 210. 

an abstract of the law of husband and wife, and of homesteads, by 
the statutes of the several States, 212-234. 

I. 

IDAHO, Territory of, boundaries, extent, history, and condition of, 160. 
ILLINOIS, boundaries, extent, constitution, history, and condition of, 
137. 
the right of suffrage by the constitution of, 192. 
abstract of the statute law of husband and wife, and of home- 
stead, 216. 
IMPAIRING THE OBLIGATION OF CONTRACTS, prohibited by 
the constitution, 184. 
reasons for this provision, 184. 
instances of the application of this provision, 185. 



INDEX. 715 



IMPEACHMENT, House of Representatives alone has the power of 
impeachment; principles and rules which regulate the same, 76. 
Senate alone tries cases of impeachment; reasons why, 76. 
Chief Justice of the Supreme Court presides, 76. 
how the trial is conducted, 76. 
the punishment which follows conviction, 76. 
the convicted party may be tried afterwards for his crimes, 77. 
who may be impeached, 77. 

for what offences an officer may be impeached, 78. 
INDENTURE, what it is, 283. 

INDEPENDENCE, declared by Congress 4th of July, 1776, 11. 
INDIANA, boundaries, extent, constitution, history, and condition of, 135. 
the right of suffrage by the constitution of, 192. 
abstract of the statute law of husband and wife, and of homestead, 
217. 
INDIAN TERRITORY, boundaries, extent, history, and condition of, 

163. 
INDORSEMENT, what it is in law, 482. {See chapter on Notes op 
Hand and Bills of Exchange.) 
who has the power of indorsement, 483. 
in blank and in full, 486. 
general authority to transact business does not include the power 

of, 517. 
a special authority to indorse is construed strictly, 517. 
the rights and duties of the indorser, 504. 
INFANT, or minor, the law concerning, 201-205. 
INHERITANCE, law of, 253. 

INSOLVENT ESTATE of a deceased, duty of executors and adminis- 
trators, 267. 
INSURANCE AGAINST ACCIDENT, law of, 605. 
INSURANCE AGAINST DISEASE, law of, G05. 
INSURANCE AGAINST DISHONESTY OF SERVANTS, law of, 605. 
INSURANCE AGAINST FIRE, law of, 576-597. 

the most frequent applications of this insurance, 576. 

in this country always effected by companies, 576. 

stock companies, what they are, 576. 

mutual companies, what they are, 576. 

mutual companies, on what terms insurance is made by them, 576. 

where mutual companies have a lien on the property insured, as 

security for the premium note, 577. 
when and how far usage may be resorted to to answer questions 

arising under fire policies, 577. 
when proposals made and accepted constitute a contract of insur- 
ance, 578. 
construction of policies of insurance against fire, 578. 
construction governed by the intention of parties as expressed, 578. 
instances of construction as to profits, stock in trade, wearing ap- 
parel, &c, 579. 
when the designation of the insured is common to many persons, 579 



71b INDEX. 



INSURANCE AGAINST FIRE— Continued. 

of the assignment of the policy, 579. 

in mutual companies the insured becomes a member, effect of this, 
579. 

application for insurance, law and rules concerning, 580. 

when statements in applications are conditions precedent, 580. 

when what is written to fill blanks differs from the printed matter, 
580. 

where a scale of premiums is calculated upon different classes of 
buildings or other property arranged according to supposed lia- 
bility to fire, 580. 

where an applicant puts the property for which insurance is re- 
quested into a less dangerous class, 581. 

effect of the rule that the expression of one thing excludes what 

is not expressed, 581. 
•alterations by the insured of the property under insurance, law of, 
582. 

the insured should ask the insurer's consent to proposed altera- 
tions, 583. 

when he may make them although consent is refused, 583. 

insured may make reasonable repairs without asking or having 
leave, 583. 

the insured must have a legal interest in the property insured, 584. 

a partner has an insurable interest in partnership property, 584. 

a mortgagor and a mortgagee may both insure the same property, 
each calling it his own, 584. 

one who holds property in right of his wife may insure it, 584. 

a trustee or agent may insure property in his hands, 585. 

a consignee generally is not bound to insure the consignor's prop- 
erty, but may do so, 585. 

a commission-merchant may cover in one policy, in his own name, 
all the goods of the owners who have consigned them to him, 
585. 

the insurers must know whom they insure; reason and effect of 
this rule, 585. 

one effecting insurance on the property of another must have his 
authority for doing so, 586. 

double insurance, what it is, and law concerning, 586. 

fire policies usually contain exact provisions in relation to, 586. 

warranty and representation, difference between them, and law con- 
cerning, 587. 

when a warranty is of the present time and affirmatory, 587. 
• when a warranty is of the future and promissory, 587. 

when a warranty is a continuing warranty, 587. 

a warranty is a part of the contract, and must be exactly com- 
plied with, 587. 

a representation is not a part of the contract, but must be sub- 
stantially complied with, 587. 

a fraudulent rev resentatioi avoids a policy, 588. 



INDEX. Ill 



INSURANCE AGAINST FIRE — Continued. 

if a representation be false, and relate to a material fact, it is fraud- 
ulent, 588. 

test whether a representation be material, 588. 

a warranty broken innocently avoids a policy; not so a misrepresen- 
tation, 588. 

concealment is the converse of misrepresentation, and has the same 
effect, 588. 

it is the duty of one asking insurance to give the insurers full in- 
formation as to all circumstances affecting the risk, 588. 

when the insurers have a lien on the property insured, all incum- 
brances on the title must be fully disclosed, 589. 

if personal property is insured and described as in a certain place, 
when it is removed therefrom the insurance ceases, 589. 

the risk incurred by insurers against fire does not include loss or 
injury by heat without fire, 589. 

insurers liable for injury by water used to extinguish fire, 590. 

or for injury caused by removal from immediate danger of fire, 
590. 

not liable for injury caused by lightning, unless there be ignition, 
590. 

loss by explosion of gunpowder is a loss by fire, 590. 

loss by explosion caused by steam not a loss by fire, 590. 

insurers liable for loss caused by negligence of insured or his ser- 
vants, 590. 

valuation, law and rules concerning, 590. 

how far a valuation is conclusive upon both parties, 591. 

if building is injured but not destroyed, insurers may repair, or pay 
what it would cost to repair, 591. 

alienation or transfer of policy or property, law of, 591. 

insured who alienes the property before a loss has no claim under 
the policy, 592. 

after a loss, insured may transfer his claim, 592. 

mortgage does not avoid the policy, 592. 

insured should be careful to have his transfer assented to by In 
surers, and duly indorsed and certified, 592. 

notice and proof of loss by fire, law and rules concerning, 592. 

adjustment of a loss by fire, 593. 

forms of notice to insurers of a loss by fire, 591, 595. 

form of assignment of a policy, 596. 
INTEREST AND USURY, law of, 631-610. 

what interest is, and when and for what it is due and recoverable, 
630. 

devices to which usurers resort to conceal usury, 633. 

a charge for risk or service, when not usurious, 634. 

the sale of notes, when not usurious, 635. 

of compound interest, when it is allowed, 637. 

abstract of the usury laws of the States, 637-640. 
INTERNAL IMPROVEMENTS, what Congress can do about them, 63. 



718 INDEX. 



IN TESTIMONIUM CLAUSE, what it is, 279. 
IRON, manufactures of, in the United States, 68. 
ISSUE, in the law of inheritance, meaning of, 253. 



JAY, John, letters to "Washington, in 1786, 17. 

Washington's reply to, 18. 

Washington's letter to, 18. 
JUDGE-MADE LAW, so called, principles regulating, 72, 73. 
JUDICIARY, the, as established by the constitution, 71. 

their power and duty of as to a law not made in pursuance of 
the constitution, 73. 

reasons for depositing this power in the hands of the judiciary, 74. 

made by the constitution independent, and for what reasons, 75. 

desirable amendments of the constitution, in respect to, 75. 
JURY. (See Trial by Jury.) 

K. 

KANSAS, boundaries, extent, constitution, history, and condition of, 153. 
the right of suffrage by the constitution of, 193. 
abstract of the statute law of husband and wife, and homestead, 219. 
KENTUCKY, boundaries, extent, constitution, history, and condition of, 
128. 
the right of suffrage by the constitution of, 193. 
abstract of the statute law of husband and wife, and of homestead, 
219. 



LAW OF PLACE, 640-645. 

what is meant by the law of place, 640. 
our States are foreign to each other in the law of place, 640. 
general rules and principles of the law of place, 641. 
a contract valid where it is made is valid everywhere, 641. 
distinction between contracts about movables and those about im- 
movables, 641. 
what is the place of a contract, 642. 
when a note may be made to bear the interest of either of two 

places, 642. 
domicile, what it is, how it is acquired, and how it maybe changed, 

643. 
the legal effects of a change of domicile, 644. 
LEGISLATIVE BODIES, each house is a judge of the elections and qual- 
ifications of its own members, 55. 
LEGISLATIVE POWERS, as established by the constitution, 51. 
LETTERS OF MARQVE, what they are and how issued, 78. 
LIBEL, the law of, 186. 



INDEX. 719 



LICENSE, what it is. 64. 

LIENS OF MECHANICS AND MATERIAL-MEN, for their wagres 
and materials, 649-653. 

•who are material-men, and their rights, 650. 

what notice must be given of a lien by mechanics, 650. 

forms of notices and releases under the law of mechanics' liens, 651- 
653. 
LIFE INSURANCE, law of, 597-604. 

how life insurance is usually effected in this country, 597. 

the premium paid partly in notes, rules of, 598. 

time of the death sometimes very important, how determined, 590 

restrictions and exceptions in life policies, 599. 

of certain dangerous trades or occupations, 599. 

when suicide avoids the policy, 600. 

when one is supposed to be dead because not heard of for a long 
time, 600. 

what interest one insured in a life policy must have, 600. 

of the assignment of a life policy, what it is and how it should be 
made, 600. 

of warranty, representation, and concealment in life insurance, 602. 

of warranty against disease, 603. 

of warranty of sober and temperate habits, 603. 
LIMITATIONS, statute of. (See Statute of Limitations.) 
LIMITED PARTNERSHIP, law of, 545. (See Partnership.) 
LINCOLN, General, suppressed a rebellion in Massachusetts, 19. 
LOUISIANA, Territory of, purchased in 1800, 134. 

boundaries, extent, constitution, history, and condition of, 134. 

the right of suffrage by the constitution of, 193. 

abstract of the statute law of husband and wife and of homestead, 
220. 



MAINE, boundaries, extent, constitution, history, and condition of, 139. 

the right of suffrage by the constitution of, 193. 

abstract of the statute law of husband and wife, and of homestead, 
221. 
MALT LIQUORS, breweries established in the United States, 70. 
MANUFACTURES, statement of the principal manufactures of the 

country, 68-70. 
MARBURY'S CASE referred to, 72. 
MARRIAGE, the law of, 235-242. 

what constitutes a legal marriage, 235. 

some uncertainty respecting the law, 235. 

what provisions of the law may be disregarded without avoiding the 
marriage, 236. 

consent is of the essence of this contract, 236. 

the wife may be always the agent of the husband, 236. 

how far she is considered so by law, 236. 



720 INDEX. 



MARRIAGE — Continued. 

the husband responsible for necessaries supplied to his wife, 236. 
unless she deserts him, 236. 

her rights if she leaves him because he treats her ill, 236. 
liabilities of a man who lives with a woman who is not his wife, 237. 
method of securing her rights and property to a woman about to be 

married, 237. 
forms of an indenture, to put in trust the property of an unmarried 

woman, 237. 
a contract made upon consideration of marriage should be written 
and signed, 462. 
MARSHALL, Chief Justice, decision of, as to judicial duty, 72. 
MARYLAND, convention of, adopted the constitution of the United 
States by a large majority, 23. 
boundaries, extent, constitution, history, and condition of, 118. 
the right of suffrage by the constitution of, 193. 
abstract of the statute law of husband and wife, and of homestead, 
222. 
MASSACHUSETTS, insurrection in, 19. 

boundaries, extent, constitution, history, and condition of, 108. 
the right of suffrage by the constitution of, 194. 
abstract of the statute law of husband and wife, and of homestead, 
223. 
MICHIGAN, boundaries, extent, constitution, history, and condition of, 
143. 
the right of suffrage by the constitution of, 194. 
abstract of the statute law of husband and wife, and of homestead, 
224. 
MILITARY ACADEMY, 80. 

MILITARY RIGHTS AND DUTIES, powers of Congress concerning, 
as given by the constitution, 188. 
power of organizing, arming, and disciplining the militia given to 

Congress, 189. 
what constitutes the militia, 189. 

the right of the people to keep and bear arms is not to be infringed, 
189. 
MINNESOTA, boundaries, extent, constitution, history, and condition 
of, 151. 
the right of suffrage by the constitution of, 194. 
abstract of the statute law of husband and wife, and of homestead, 
225. 
MINORS, may bequeath personal property, and when, 255. 
MISSISSIPPI, boundaries, extent, constitution, history, and condition 
of, 136. 
the right of suffrage by the constitution of, 194. 
abstract of the statute law of husband and wife, and of homestead, 
225. 
MISSOURI, boundaries, extent, constitution, history, and condition of, 141. 
the right of suffrage by the constitution of, 194. 



INDEX. 721 



MISSOURI— Continued. 

abstract of the statute law of husband and wife, and of homestead, 
226. 
MISTAKE, important distinction between a mistake of law and a mistake 

of fact, G32. 
MONEY, power to coin money belongs to Congress, 85. 
coins, the money of the world, 85. 

before the invention of paper money, governments in difficulties de- 
based the coin; now they issue paper money for the same purpose, 
and with a similar effect, 85. 
exigencies of the late war compelled the repeal of the law making 

money the only legal tender, 85. 
this could be justified only on the ground of necessity, 86. 
a most interesting question, when we can be done with paper money 
as a legal tender, 87. 
MONTANA, Territory of, boundaries, extent, history, and condition of, 

161. 
MORMONS, history and present location and condition of, 157. 
MORTGAGES OF LAND. (See Deeds of Conveyance.) 
MUTUAL INSURANCE COMPANIES. (See Insurance against 
Fire.) 

K 

NATIONAL SOVEREIGNTY, reconciled with State rights, 44-47. 
NATURALIZATION, Congress has power over, 87. 

r effect of, 88. 
laws of, 88. 
process of, 90. 
forms of, 91-94. 
NAVAL ACADEMY, 80. 

NEBRASKA, boundaries, extent, constitution, history, and condition of, 
156. 
the right of suffrage by the constitution of, 194. 
abstract of the statute law of husband and wife, and of homestead, 
226. 
NEVADA, boundaries, extent, constitution, history, and condition of, 155. 
the right of suffrage by the constitution of, 194. 
abstract of the statute law of husband and wife, and of homestead, 
226. 
NEW ENGLAND, suffering and discontents in, after the War of Inde- 
pendence, 19. 
NEW HAMPSHIRE, boundaries, extent, constitution, history, and con- 
dition of, 107. 
the right of suffrage by the constitution of, 195. 
abstract of the statute law of husband and wife, and of homestead, 
227. 
NEW JERSEY, convention of, adopted the constitution of the United 
States at once, unanimously, 23. 
46 



722 INDEX. 



NEW JERSEY— Continued. 

boundaries, extent, constitution, history, and condition of, 114. 

the right of suffrage by the constitution of, 195. 

abstract of the statute law of husband and -wife, and of homestead, 

227. 
NEW MEXICO, Territory of, boundaries, extent, history, and condition 

of, 156. 
NEW YORK, legislature of, their order looking to a convention for a 

federal constitution, 21. 
boundaries, extent, constitution, history, and condition of, 112. 
the right of suffrage by the constitution of, 195. 
abstract of the statute law of husband and wife, and of homestead, 

228. 
NORTH CAROLINA, boundaries, extent, constitution, history, and con- 
dition of, 122. 
the right of suffrage by the constitution of, 195. 
abstract of the statute law of husband and wife, and of homestead, 

229. 
NORTH-WEST TERRITORY, history of, 131. 

ordinance for the government of, 133. 
NOTES OF HAND AND BILLS OF EXCHANGE, DRAFTS, AND 

CHECKS, 481-512. 
negotiable paper, what it is, 481. 
bills of exchange, when they were invented, 481. 
bills and notes in commerce represent money, which represents the 

market value of every thing, 481. 
the rules of law on the subject of negotiable paper are very exact 

and technical, 481. 
a negotiable bill of exchange, what it is, 482. 
form of, 482. 

the drawer, who he is, 482. 
the drawee, who he is, 482. 
the payee, who he is, 482. 
acceptance of a bill, how it is made, 482. 
by acceptance, the drawee becomes the acceptor, 482. 
how the payee may transfer the paper by indorsement, 482. 
how an indorsee may transfer the bill, 482. 
common form of a promissory note, 482. 
"from date" should be written, but if omitted, the law supplies 

the omission, 482. 
difference between parties to a note and the parties to a bill of 

exchange, 483. 
the signer of a note is called the maker or promisor, and the payee 

is the promisee, 483. 
the payee of a negotiable note has the same power of indorsement 

as the payee of a bill of exchange, 483. 
the words "to order" or "to bearer" make a note or bill 

negotiable, 483. 
the maker of a note holds the same position as the acceptor of a 

bill, 483. 



INDEX. 7 '2;l 



NOTES OF HAND AND BILLS OF EXCHANGE — Continued. 

the drawer of a bill holds the same position as the indorser of a 
note, 483. 

a holder of a note looks first to the maker and then to the indorser, 
483. 

the holder of a bill looks first to the acceptor and then to the drawer, 
483. 

neither indorsement nor acceptance nor making is complete until 
delivery and reception of the bill or note, 483. 

•what is essential to a negotiable note or bill, 484. 

effect of the difference between a note that is negotiable and one 
that is not, on the trustee process or foreign attachment, 484. 

the promise of the note must be absolute and definite, and so must 
be the order of the bill, 484. 

if the time of payment is not written in a bill or note, it is payable 
on demand, 484. 

if any contingency appears on the face of the instrument, as to time 
or amount of payment, or payor or payee, it is not a negotiable 
note or bill, 484. 

a bill or note to be negotiable must be payable in money only, 484. 

if .payable in current funds, or good bank-notes, the paper is not 
negotiable in some States, but in others it is, 484. 

a bill or note may be written on paper or upon any proper sub- 
stitute, 485. 

it may be written in any language, in ink or pencil, 485. 

and the name may be signed or indorsed by a mark, 485. 

if not dated, it will be considered as dated when made, 485. 

the amount is usually written in figures at the corner or bottom, 
485. 

if the sum written in words in the paper and the sum written at the 
corner in figures differ, the words prevail over the figures, 485. 

accidental omissions supplied by the law; instances given, 485. 

where persons sell an article, taking in payment a promissory note 
which contains a provision that the property or ownership of the 
thing sold shall remain in the seller until the note is paid, 485. 

form of such a note, 485. 

question whether such a note be negotiable, and effect of this ques- 
tion, 486. 

the payee must be distinctly designated, unless the bill or note is 
made payable to bearer, 486. 

a promissory note may be made payable to the promisor, or his 
order, 486. 

such a note is nothing until the promisor not only signs, but in- 
dorses, 486. 

a note indorsed in blank is transferable by delivery, 486. 

what indorsements in blank are, 486. 

what indorsements in full are, 486. 

any holder may write over any blank indorsement an order to pay 
it to himself, 486. 



724 INDEX. 



NOTES OF HAND AND BILLS OF EXCHANGE — Continued. 

a note to the promisor himself, and indorsed by him in blank, is 

much the same thing as a note to bearer, 487. 
use of such notes in our commercial cities, 487. 
where an indorsee is named, and the note gets into the possession of 

a wrong person of the same name, 487. 
where the name of a party is spelled wrong, 487. 
where both the father and the son have the name of the payee, 487. 
if the paper is neither payable to bearer, nor to -the maker's or 

drawer's order, nor to any other person, it is incomplete and in- 
valid, 487. 
where a note is payable to a fictitious payee, and indorsed with the 

same name by the maker, 487. 
if a blank be left for the payee's name, a bona fide owner may fill it 

with his own, 487. 
where the name of a payee is not the name of a person, but the 

name of a ship, 487. 
where a note is payable to different persons in the alternative, 487. 
a note payable to the order of any person is the same as if to him 

or his order, 487. 
where the instrument is ambiguous and irregular, so that it may be 

read as either a note or a bill, 487. 
bank-notes or bank-bills, what they are, 487. 
property in them passes by delivery, 487. 
if one who finds or steals them passes them for value to a bona fide 

holder, they are good in his hands against the original owner, 488. 
if a bank pays its bills in good faith, an owner who lost them has 

no claim, 488. 
bank-bills are passed by a will bequeathing money, 488. 
they are a good tender, unless objected to at the time as not money, 

488. 
forged bills given in payment are nothing, 488. 
where bills of a bank which has failed are paid, the effect of such 

payment, 488. 
checks on banks, what they are, 488. 
they require no acceptance, 488. 

where a holder delays presenting a check until the bank fails, 488. 
when the drawer of a check has the right to require that it be pre- 
sented for payment, 488. 
when the drawer of a check has no funds in the bank, 488. 
checks are often marked by the bank as good, the effect of this, 

488. 
checks are often drawn payable to a payee or his order, the purpose 

and effect of this, 489. 
a check is not payment of a debt until it is cashed, 489. 
the death of a drawer countermands his check, 489. 
if the bank pay it before knowledge of the death of the drawer, they 

are discharged, 489. 
where a bank pays a forged check, whose loss it is, 489. 



INDEX. 725 



NOTES OF HAND AND BILLS OF EXCHANGE — Continued. 

where a bank pays a check, of which the amount has been falsely 

increased, whose loss it is, 489. 
accommodation paper is paper for which the acceptor or maker has 

received no consideration, but has lent his name and credit to 

accommodate the maker, drawer, payee, or holder, 489. 
he is bound to all other parties, as if he had received a considera- 
tion, 489. 
he is not bound to the party whom he accommodates, 489. 
foreign and inland bills of exchange, in what way they differ, 490. 
our States are foreign to each other in commercial law, 490. 
foreign bills dishonored should be protested, 490. 
inland bills and promissory notes are commonly protested, though 

this is not required by law, 490. 
damages are to be recovered on protest, 490. 
law of place gives rise to important questions in the case of foreign 

bills, 490. 
if a foreign bill be indorsed where made, in a manner sufficient 

there, the indorsement will be held good here, 490. 
a bill drawn in one place, but payable in another place, must be 

regulated as to protest and notice of dishonor by the law of the 

place where payable, 491. 
if the legal interest where made differs from the legal interest where 

payable, the maker may make it payable with either interest, 491. 
if the interest be not expressed, it will be that of the place where 

the note is payable, 491. 
*the law of the place of the contract construes it as a debt, but the 

law of the place where it is put in suit determines all questions a? 

to remedy ; instances of this, 491. 
statutes of limitation of the place of the court trying the case are 

generally applied to it, 491. 
but if the suit relates to land, the statute of limitations of the place 

where the land is situated is applied, 491. 
a promisor may be arrested where the note is sued, if the law of 

that place permits, although he could not be where the note is 

made, 491. 
the law of a foreign country is presumed to be the same with that 

where the suit is brought, unless proved otherwise, 490. 
the consideration of negotiable paper is regulated by a peculiar 

law, 491. 
only between two immediate parties can the defendant in a suit on 

negotiable paper rely on the want of consideration, 492. 
an indorser sued by an indorsee on a note originally made in fraud, 

may require the holder to prove that he paid consideration, 492. 
value received is usually and properly written, but is not neces- 
sary, 492. 
what this phrase means in a note and in a bill, 492. 
what may be a consideration for negotiable paper, 493. 
what is not a sufficient consideration, 493. 



726 INDEX. 

NOTES OF HAND AND BILLS OF EXCHANGE — Continued. 
the rights and duties of the maker, 493. 
the maker of a note and the acceptor of a bill are bound to pay it 

at maturity, and continue bound until their liability is barred by 

the statutes of limitations, 493. 
the peculiar characteristics of negotiable paper begin to operate 

•when the paper has passed into the hands of third parties, 493. 
the rights and duties of the holder of negotiable paper, 494. 
if a bill is deposited with him for collection, he holds it as a trus- 
tee, and can use it only in conformity with the trust, that is, not 

for his own benefit, 494. 
where negotiable paper is transferred after its dishonor, 494. 
presentment for acceptance is the duty of the holder of a bill of 

exchange, 495. 
this presentment should be made without delay, 495. 
it should be made during business hours, 495. 
what business hours are in this country, 495. 
excuses for non-presentment, 496. 

to whom and in what way a bill should be presented, 496. 
presentment for demand of payment of negotiable paper is governed 

by strict rules, 496. 
what these rules are, stated, 496. 
when and how the demand should be made, 497. 
bankruptcy of the payer is no excuse for non-demand, 497. 
impossibility of presenting a bill or note for payment will excuse 

delay in demanding payment while the impossibility remains, 497. 
the mistake of the holder is no excuse, 497. 
negotiable paper, payable at a time certain, is entitled to grace, 

498. 
how the days of grace are computed, 498. 
if a note is payable in one or more months, this means calendai 

months, whether shorter or longer, 498. 
how the maturity of a note is computed, 498. 
bills and notes on demand should be presented for payment within 

a reasonable time, 498. 
the holder of a check should present it at once, 499. 
demand of payment should be made at the residence or place of 

business of the payer, within the proper hours of business, 499. 
a note payable at a particular place should be demanded at that 

place, 499. 
if a payer has changed his residence he should be sought for with 

' due diligence, 499. 
where a bill or note is not presented for payment at the time, to the 

person, in the place, or in the way required by law, all parties 

but the acceptor or maker are discharged, 499. 
of protest and notice, 500. 
when protest is required by law, oOO. 
when, where, in what manner, and by whom protest should be 

made, 500. 



INDEX. 727 



NOTES OF HAND AND BILLS OF EXCHANGE — Continued. 

the seal and certificate of a notary public are evidence of the dis- 
honor of a foreign bill, but not of an inland bill, 500. 

notice must be given even to one who has knowledge, 500. 

if a letter properly addressed be put into the Post-office, any mis- 
carriage of the mail does not affect the party giving notice, 501. 

a notice may be sent by a private messenger, under certain con- 
ditions, 501. 

the notice should be sent either to the place of business or to the 
residence of the party notified, 501. 

it may be sent wherever a party directs such a notice to be sent, 501. 

each party receiving notice has a day, or until the next post, after 
the day on which he receives it, to send the notice forward, 501. 

Sundays and legal holidays are not computed in reckoning the time 
in which notice must be given, 502. 

notice should be given only to a party to an instrument who is liable 
to pay it, 502. 

it must be given to every antecedent party who is to be held, 502. 

it may be given personally to a party, 503. 

how to be given when the party to be notified is dead, 503. 

one transferring by delivery without indorsement paper payable to 
bearer is not entitled to notice of non-payment, 503. 

a guarantor is entitled only to such notice as shall protect him from 
injury caused by want of notice, 503. 

the right to notice may be waived by any agreement to that 
effect, 503. 

different forms of waiver, notice, demand, and protest, and their 
effect, 503. 

how the want of notice may be cured afterwards, 504. 

the rights and duties of the indorser, 504. 

who are meant in the law-merchant by indorsers, 504. 

the payee of negotiable paper may indorse it, and afterwards any 
number of persons may indorse it, 504. 

what an indorser does by his indorsement, 504. 

an indorsement may be in blank or in full, 505. 

what these are, and the effect of each, 505. 

of special indorsement, how made, and its effect, 505. 

negotiable paper, transferable by delivery, is the property of who- 
ever receives it in good faith, 505. 

what other instruments this rule has been extended to, 505. 

hence, if such an instrument passes for value to an innocent holder, 
this holder acquires a legal right to it, 505. 

the transfer by indorsement may be written on the face of the in- 
strument, 506. 

joint payees who are not partners must join in an indorsement, 506. 

an indorser prevents his own responsibility by writing * ' without 
recourse " over his name, 506. 

every indorsement and acceptance admit conclusively the genuine- 
ness of the signature of every previous party, 506 



728 INDEX. 

NOTES OF HAND AND BILLS OF EXCHANGE — Continued. 

a holder may bring his action against any prior indorser, how to 
do this, 506. 

where a note or bill is payable to the maker's own order, and indorsed 
by him in blank, 506. 

where negotiable paper is transferred by delivery without indorse- 
ment, 506. 

an indorsement may be made on the paper before the bill or note is 
drawn, 507. 

how indorsement may be made when the payee is dead, 507. 

if there be two firms, to both of which a person belongs, neither 
can sue the other, 507. 

how the difficulty may be cured by indorsement, 507. 

the rights and duties of the acceptor of a bill of exchange, 507. 

when a written promise to accept a future bill, which describes 
that very bill, is equal to an acceptance, 507. 

an acceptance after maturity is an acceptance to pay on demand, 
508. 

a bill can be accepted only by the drawee, or by some one who 
accepts for honor, 508. 

acceptance or payment for honor, the meaning and effect of this, 
and how it is done, 508. 

the reason why it is done, 509. 

where a note includes in it a confession of judgment, 509. 

the same note may waive the benefit of all exemption laws, 509. 

the same note may include also a power of attorney, 509. 

forms of such notes, 510-512. 
NOTICE, in the law of negotiable paper, the law of, 500. 

how the right to notice may be waived, and the effect of waiver, 
503. 
NOTICE BY CARRIER. {See Carriage of Goods and Passen- 
gers.) 

O. 

OHIO, boundaries, extent, constitution, history, and condition of, 131. 
the right of suffrage by the constitution of, 195. 
abstract of the statute laws of husband and wife, and of homestead, 
229. 
ORDINANCE, for the government of the United States north-west of 

the river Ohio, 133. 
OREGON, boundaries, extent, constitution, history, and condition of, 
152. 
the law of suffrage by the constitution of, 195. 
abstract of the statute law of husband and wife, and of home- 
stead, 230. 
ORIGINAL PROMISE, how it differs from a collateral promise, 463. 
OTIS, James, advises the calling of an American congress, 10. 



INDEX. 729 



P. 

PAINS AND PENALTIES, bill of, similar to a bill of attainder, 182. 
PAPER MONEY, its cost to us, 87. 

(See Money.) 
PARTNERSHIP, the law of, 532-537. 

what a partnership is, 532. 

how a partnership may be formed, 532. 

partners may agree as to any way of dividing the losses, but the 
agreement will not affect parties dealing with the firm, 532. 

agreements in articles of copartnership limiting the power of a 
partner are not binding on third parties who are ignorant of 
them, 533. 

each partner is responsible to every creditor of the partnership for 
the whole amount of the debt, 533. 

when persons who are not partners as between themselves are lia- 
ble as partners to third parties, 533. 

a secret partner, who he is, and law concerning, 533. 

participation in the profits generally makes one a partner, 534. 

a clerk or salesman may receive a share of the profits instead of 
wages, without being a partner, 534. 

a partnership usually has but one business name, but may have 
more for distinct business transactions, 534. 

how a partnership may be dissolved, 534. 

if the articles do not provide that the parties should continue foi 
a specified time, either partner may dissolve it when he will, buf 
not so as to injure the other partners, 534. 

the assignment by a partner of his whole interest in the partner- 
ship dissolves the partnership, 535. 

the assignee acquires no right to become a member of the firm, 535. 

death of any partner operates a dissolution, 535. 

if the whole interest of the partner is sold on execution, this makes 
a dissolution, 535. 

if one partner retires, this operates in law a dissolution, 535. 

how the partner retiring should give notice thereof, 536. 

of the property of the partnership, 536. 

the law concerning real estate, held by a partnership, 536. 

the authority of each partner and the joint liability of each part- 
ner, 537. 

each partner is an agent of the whole partnership with full power 
as to transactions within the usual business of the firm, 537. 

no person dealing with a partner is affected by his want of good 
faith toward the partnership, unless he colluded with the partner, 
537. 

a partner cannot bind the firm by transactions which do not belong 
properly to commercial business, 537. 

how far a partner may bind his copartners by an instrument under 
seal, 538. 



730 INDEX. 



PARTNERSHIP— Continued. 

a partnership has no seal at law, 538. 

how far a majority of a firm can bind a minority, 538. 

where the name of one partner is used as the name of the firm, 538. 

one not a partner is not liable as such because the firm agrees to 

be bound by his advice, 538. 
the reception of a new partner constitutes a new firm, although 

the old name be retained, 539. 
how notices should be given to bind all the partners, 539. 
when money lent to a partner for partnership purposes constitutes 

a partnership debt, 539. 
when credit is given to one only of the partners, 539. 
the firm liable only to one who deals with the partner in good 

faith, 540. 
when one who deals with a partner knows that the partner is using 
- the paper, property, or credit of the firm for his personal benefit, 

540. 
how far a firm may be bound for the criminal acts of a partner, 540. 
remedies of partners against each other, 540. 
reasons why a partner has usually no remedy against a copartner 

in a court of law, but must go into a court of equity, 541. 
partners are entitled to perfect good faith from each other, and a 

court of equity will enforce it in all cases ; instances given, 541. 
rights of a firm against third parties, 542. 

rights of creditors in respect to partnership or private funds, 542. 
creditors of a partnership have a right to the partnership funds: 

creditors of an individual partner have a right to his individual 

property; how these rights may be enforced, 543. 
how the interest of one partner in the partnership funds may be 

attached, levied upon, and sold, 543. 
dissolution of partnership, how caused, and effect of, 544. 
when a dissolution is caused by the death of a partner, the rights, 

duties, and powers of the survivors, 544. 
when a dissolution is caused by mutual consent, and provision 

made for the winding up of partnership affairs, 545. 
limited partnership, what it is, and how made, 545. 
general partners in a limited partnership, rights and responsibilities, 

545. 
special partners in a limited partnership, rights and responsibilities, 

545. 
advertisement of a limited partnership always made, 545. 
how such an advertisement should be drawn, and exact accuracy 

requisite in the publication, 546. 
forms of articles of copartnership, 546-550. 
PASSENGERS. (See Carriage of Goods and Passengers.) 
PAYMENT AND TENDER, 466. 

how payment may be made, 466. 

generally by payment of money, but may be by bill or note, or other- 
wise, as is agreed upon, 466. 



INDEX. 731 



PAYMENT AND TENDER — Continued. 

if an " approved note " is agreed upon, what this means, 466. 
where there is no special agreement the only payment known to the 

law is by cash, or in bills made a legal tender by law, 466. 
when a tender in current bank-bills is sufficient, 466. 
the effect of an informality in the tender, 466. 
if a larger sum than is due be tendered, there must be no require- 
ment of change or of the balance, or of a receipt in full, 466. 
a simple receipt for so much money may be demanded, 467. 
a debtor who tenders money in payment of a debt, and afterwards 

refuses to pay the money, destroys the effect of his tender, 467. 
when a negotiable note or bill is given for a debt, effect of, 467. 
appropriation of payment, meaning of, and law of, 467. 
a debtor owing several debts to his creditor may appropriate his 

payment to any of his debts at his own pleasure, 467. 
if he does not appropriate his payment the receiver may, 468. 
if neither party appropriates the payment, how the law will do so, 
468. 
PAYMENT FOR HONOR, 508. 

PENNSYLVANIA, convention of, adopted the constitution of the United 
States by a large majority, 23. 
boundaries, extent, constitution, history, and condition of, 115. 
the right of suffrage by the constitution of, 195. 
abstract of the statute law of husband and wife, and of homestead, 
230. 
PERSONAL RIGHTS of a citizen of the United States, 171-247. 
PERSONAL SECURITY, right to, by the constitution, 176. 
PILGRIMS, their instrument of association adopted while in the " May- 
flower," the first written constitution, 9. 
POWERS OF GOVERNMENT, three: the executive, the legislative, and 
the judicial ; progress in a well-ordered liberty depends upon their 
separation and independence, 47. 
PRESIDENT AND VICE-PRESIDENT, method of electing, and his- 
tory of. 48. 
veto power, origin, purpose, and nature, 50. 
PRIMOGENITURE, the right of, unknown in this country, 253. 
PRIVATEERING, what it is, 79. 

of late years, much effort to abolish, but hitherto ineffectual, 79. 
PRIZES, of war, how regulated, 79. 
PROGRESS of mankind in government, 7. 

PROPERTY RIGHTS, of a citizen of the United States, 247-653. 
PROTEST OF NEGOTIABLE PAPER, the law of, 500. 
PROXIES, forms of, 530, 531. 

PUBLIC DEBT, a comparison of our debt and interest with the debt and 
interest of Great Britain, 87. 



732 INDEX. 



Q. 

QUITCLAIM DEED, what it is, 279. 
QUORUM, what it is, and how constituted, 659. 

R. 

RAILROAD COMPANIES. (See Carriage of Goods and Passen- 
gers.) 
RAILROADS, power of Congress over, 59. 

power of Congress to charter railroads, 59. 

power to help railroads by bonds or grants, 59. 

has Congress the power to build a railroad with the public funds, 59. 

can Congress regulate the freights on, 60. 

power to regulate commerce by, compared with power to regulate 

commerce by shipping, 61. 
Congress cannot give a preference to the ports of one State over those 

of another by regulating railroads, 61. 
did not enter into the contemplation of the framers of the constitu- 
tion, and there must be a fair and rational interpretation of its 
provisions applicable to them, 62. 
REAL ESTATE, held by a partnership, law of, 536. 
RECEIPTS AND RELEASES, 468. 
what a receipt is, 468. 
every receipt is open to evidence, 470. 
how releases differ from receipts, 470. 
a release is a contract, and requires a consideration, unless it bo 

sealed, 470. 
a consideration for a release should be stated in it, 470. 
forms of receipts and releases, 470-480. 
RECORDING OF DEEDS, law of, and effect of, 278. 
RECOVERY AND COLLECTION OF DEBTS, means provided for, 
648, 649. 
arrest and imprisonment, 648. 
trustee process, 648. 
exemption laws, 649. 
REFEREES, same as arbitrators. (See Arbitration.) 
RELEASES, how they differ from receipts, 470. 

RELIGIOUS FAITH AND PROFESSION, freedom of, secured by the 
constitution, 187. 
history of this freedom in the States, 188. 
REPUBLICAN CONSTITUTIONAL GOVERNMENT, President Lin- 
coln's definition, 6. 
RETIRING PARTNER, what notice he should give, 536. 
REPRESENTATION, right of, in the law of inheritance, and meaning 

of, 253. 
REVOCATION, of authority, law concerning, 517. 
of an award. (See Arbitration.) 



INDEX. 733 



REVOCATION — Continued. 

of wills, how made by the testator, 258. 

when made by operation of law, 258. 
RIGHT TO ASSEMBLE and petition government, secured by the con- 
stitution, 183. 

reasons for this provision, 183. 

this provision implies that the petition should be respectfully treated, 
184. 
RHODE ISLAND, boundaries, extent, constitution, history, and condi- 
tion of, 110. 

the right of suffrage by the constitution of, 196. 

abstract of the statute law of husband and wife, and of homestead, 
231. 
RULES FOR ORGANIZATION AND PROCEDURE IN DELIBER- 
ATIVE ASSEMBLIES, 657-676. 

origin and purpose of the rules of order, 657. 

organization of meetings or assemblies, 658. 

quorum, what this means, and how it is constituted, 659. 

how questions are decided, 659. 

how business may be introduced, 660. 

of the various kinds of motions, 661. 

of resolutions and orders, and the difference between them, 661. 

of the order in which motions may be put, 662. 

of a motion to adjourn, when it is in order, 663. 

of a motion that a matter before the meeting He on the table, 663. 

of a motion for the previous question, purpose and effect of, 663. 

of a motion to postpone to a day certain, 664. 

of a motion to commit, 665. 

of a motion to amend, 665. 

how committees are appointed, 667. 

of the committee of the whole, 668. 

privileged questions, 669. 

of the call to order, how it is made, and the effect of, 669. 

orders of the day, 670. 

how the presiding officer puts motions, 670. 

how a vote may be made certain, 671. 

how a question may be taken by yeas and nays, 671. 

how a motion should be made, 672. 

sundry rules and usages of debate, 672. 

of appeals from a presiding officer, how they are conducted, and 
effect of, 673. 

of reconsideration, purpose and effect of, 673. 

of a bill, what it is, and the stages through which it must pass to 
become a law, 674. 

the preservation of order, that it is the purpose of all the rules of 
order, 675. 



734 INDEX. 



SEAL, what it is and how it may be made, 274. 
SEAL ISLANDS OF ALASKA, 162. 
SECRET PARTNER, who is, and law concerning, 533. 
SIGNATURES OF DEEDS, how to be made, 274. 
SILK GOODS, manufactures of, in the United States, 69. 
SLANDER, the law of, 186. 

SOUTH CAROLINA, responds to Massachusetts, and declares for union, 10. 
convention of, adopted the constitution of the United States by a 

large majority, 23. 
boundaries, extent, constitution, history, and condition of, 123. 
the right of suffrage by the constitution of, 196. 
abstract of the statute law of husband and wife, and" of homestead, 
231. 
STATE RIGHTS, reconciled with national sovereignty in the constitu- 
tion, 44-47. 
STATES, their unwillingness to give up the independence and sovereignty 
of each State, 12. 
new, admission of, 94. 
constitution of the several, 107-156. 
STATUTE OF FRAUDS, 462-466. 

when the English statute of frauds was passed, and for what pur- 
pose, 462. 
statutes for the same purpose in our States, 462. 
provisions respecting special promises by an executor or adminis- 
trator, 462. 
a promise to answer for the debt or default of another person, 463. 
collateral promise, how it differs from an original promise, 463. 
when the promise is intended to subserve some purpose of the 

promisor, 464. 
when an old debt is extinguished by a new promise, 464. 
an oral promise to pay the debt of another, and also to do some 

other thing, 464. 
an agreement made upon consideration of marriage, 462. 
a contract for sale of lands must be in writing, and signed, 462. 
an agreement not to be performed within a year, 464. 
legal meaning of this, is an agreement not capable of complete 

execution within a year, 465. 
agreements which the statutes require to be in writing may be on 
several pieces of paper, if they relate to one and the same busi- 
ness, 465. 
the signature may be at the beginning, middle, or end of the paper, 

465. 
a contract for the sale of goods, wares, and merchandise must be 

written and signed, 463. 
shares in corporations or joint-stock companies are goods, wares, or 
merchandise, within the requirement of the statute, 465. 



INDEX. 735 



STATUTE OF FRAUDS— Continued. 

the statute does not apply to contracts -which have been partially 

executed, 465. 
a representation or assurance concerning the character or credit of 

a party should in some States be written and signed, 466. 
the sum beyond which contracts for sale should be written, 466. 
STATUTE OF LIMITATIONS, 625-630. 
construction of the statute, 626. 
of prescription, or limitation, at common law, 626. 
a new promise, form and effect of, 627. 
part payment, effect of, 628. 
of the statutory exceptions, 628. 
when the period of limitation begins, 629. 
the statute does not affect collateral security, 630. 
STOCK INSURANCE COMPANIES. {See Insurance against 

Fire.) 
SUBMISSION, to arbitrators or referees, same as reference. {See Arbi- 
tration.) 
44 SUBSCRIBED," how it differs from signed, 465. 
SUFFRAGE, the right and duty of, 189. 

citizenship does not of itself confer the right of suffrage, 189. 

a citizen of the United States must be a citizen of that State or 

territory in which he resides, 190. 
the right of suffrage depends on the law of the State where a man 

resides, 190. 
the right of suffrage in the several States, 191-197. 
the importance of a due exercise of this right, 197. 
the dangers which threaten this country from a disregard of it, 

197-200. 
an oligarchy of corruption seems to be growing up, 198. 
SUICIDE, its effect upon a policy of life insurance, 600. 
SURETY, how the surety and the guarantor differ, and wherein they are 
alike, 458. 

T. 

TABLE, giving the square miles, population in 1870, population in 1790, 
rank in population in 1780, rank in population in 1870, and the 
present number of representatives in Congress of each State, 167. 
TABLES, annexed to the section on the census, 101-105. 
TARIFF, what it is, 64. 

by what principles it should be governed, 66. 

how far it should pay a special regard to protection of domestic 
manufactures, 68. 
TAXES, argument for and against protection by tariffs, 66-68. 
power of Congress to lay and collect, 64. 
divisible into direct taxes and indirect taxes, 64. 
how far regulated by a tariff, 64. 
how far regulated by a license, 64. 



736 INDEX. 






TAXES— Continued. 

how far regulated by an excise, 64. 

the general established principles by which all taxation should be 

governed, 64. 
equality of taxation, 64. 

certainty of taxation, as to amount, time, and payment, 64. 
convenience of a tax to payers as to time and manner of payment, 

64. 
provision as to three-fifths of all other persons referred to slaves ; 

this a compromise of then existing views and claims, 64. 
the great question now is, should taxation be only for revenue, 65. 
second act passed by Congress was for the encouragement and pro- 
tection of manufactures, 65. 
TENANCY BY THE CURTESY, 210. 

TENDER, what is a lawful tender, and how it should be made, 466. 
TENNESSEE, boundaries, extent, constitution, history, and condition 
of, 130. 
the right of suffrage by the constitution of, 196. 
abstract of the statute law of husband and wife, and of home- 
stead, 232. 
TERRITORIES OF THE UNITED STATES, in the order in which 

they were organized, 156-165. 
TERRITORY, Indian. (See Indian Territory.) 
TEXAS, boundaries, extent, constitution, history, and condition of, 146. 
the right of suffrage by the constitution of, 196. 
abstract of the statute law of husband and wife, and of home- 
stead, 232. 
TRADE-MARKS, law of, 645-647. 
TRIAL BY JURY, secured by the constitution, 176. 

there are two kinds of jury, the grand jury and the petit jury, 177. 
how these juries are selected, 177. 
function of the grand jury, 177. 
function of the trial or petit jury, 177. 
venire, writ of, what it is, 177. 
impanelled, how the petit jury is, 178. 
history of trial by jury, 178. 
TRIED TWICE for the same offence, no one can be, by the constitu- 
tion, 179. 
reason for this provision, 179. 

U. 

UNITED STATES, government of, is the strongest government in the 

world, 4. 
USURY. (See Interest and Usury.) 
UTAH, Territory of, boundaries, extent, history, and condition of, 157. 



INDEX. 731 



VICE-PRESIDENT, his powers and duties, 50. 

VERMONT, boundaries, extent, constitution, history, and condition 
of, 126. 
the right of suffrage by the constitution of, 196. 
abstract of the statute law of husband and wife, and of home- 
stead, 233. 
VIRGINIA, boundaries, extent, constitution, history, and condition 
of, 120. 
the right of suffrage by the constitution of, 197. 
abstract of the statute law of husband and wife, and of home- 
stead, 233. 

W. 

WAR, articles of, 79. 

what these articles prohibit, and rules respecting, 80. 
WAR POWER, Congress has power to declare war in such form as it 

thinks proper, 78. 
WARD, law of guardian and ward, 205-207. 
WARRANTY, in insurance. {See Insurance against Fire.) 
WARRANTY DEED, what it is, 279. 
WARS OF THIS COUNTRY, 81-83. 

WASHINGTON, his proclamation in New Jersey in 1777, 11. 
his reply to letters of John Jay, 18. 
his letters to Colonel Humphries and General Knox, 20. 
chosen president of the convention to form a constitution, 21. 
his earliest service in 1754, 121. 
WASHINGTON, Territory of, boundaries, extent, history, and condition 
of, 158. 
city of, 161. 
WESTERN TERRITORY, conflict of opinion and interest as to the 

ownership of the vacant lands in, 12. 
WEST VIRGINIA, boundaries, extent, constitution, history, and con- 
dition of, 154. 
the right of suffrage by the constitution of, 197. 
abstract of the statute law of husband and wife, and of home- 
stead, 234. 
WILLS, the law of, 255-265. 

the disposal of property by, 255. 
. sometimes difficult to make an unobjectionable will, 255. 
any person of sound mind and of proper age may make a will; 

minors of a certain age may bequeath personal property, 255. 
a married woman cannot make a will, unless in relation to trust 
property, or when the statute law of her State gives her the 
power, 255. 
directions how to make a will, 255. 

47 



738 INDEX. 



WILLS— Continued. 

witnessing very material, and how a will should be witnessed, 256. 
words of inheritance, what they are, and effect of, 257. 
children not provided for in a will inherit, unless omission in- 
tentional, 257. 
a testator should name his executors, but the will is good although 

he does not, 257. 
codicils, what they are, and how they should be made, 257. 
how a will should be revoked, 258. 

revocation of a will by the operation of law, if the testator after- 
wards marry and have a child, 258. 
forms of wills, 259-265. * 

WISCONSIN, boundaries, extent, constitution, history, and condition 
of, 150. 
the right of suffrage by the constitution of, 197. ' 
abstract of the statute law of husband and wife, and of home- 
stead, 234. 
WINE, manufacture of, in the United States, 70. 
WOOLLEN GOODS, manufactures of, in the United States, 69. 
WORSTED GOODS, manufactures of, in the United States, 69. 
WYOMING, Territory of, boundaries, extent, history, and condition 
of, 161. 



INDEX OF FORMS. 



AGENCY. 

A power of attorney, 526. 

A power of substitution, 527. 

A power of attorney in a shorter form, 527. 

A full power of attorney to demand and recover debts, 528. 

A power of attorney to sell and deliver chattels, 529. 

A power of attorney given by seller to buyer, 529. 

A power of attorney to sell shares of stock, with appointment by 

attorney of a substitute, 529. 
A power of attorney to subscribe for stock, 530. 
A proxy, or power of attorney to vote, 530. 
A proxy, revoking all former proxies, 530. 
A proxy, with affidavit of ownership, in use in New York, 530. 
A power to receive a dividend, 531. 
AGREEMENTS. 

A general agreement, sufficient for many purposes, 429. 

A general agreement, as used in the Western States, 429. 

A general contract for mechanics' work, 431. 

An agreement for purchase and sale of land, in use in the Middle 

States, 431. 
An agreement for sale of land, in use in the Western States, 432. 
An agreement for warranty deed, in use in the Western States, 434. 
A contract to convey real estate, in use in the Middle States, 435. 
An agreement for the purchase of an estate, in use in New England, 

436. 
An agreement for the sale of an estate by private contract, 439. 
An agreement to be signed by an auctioneer, after a sale by auction, 

439. 
An agreement to be signed by the purchaser, after a sale by auction, 

440. 
An agreement to make an assignment of a lease, 440. 
An agreement for making a quantity of manufactured articles, 440. 
An agreement between a trader and a book-keeper, 441. 
An agreement for damages in laying out or altering a road, 442. 



740 INDEX OF FORMS. 



AGREEMENTS— Continued. 

An agreement between a person retiring from the active part of a 
business and another who is to conduct the same for their mutual 
benefit, 442. 

A brief building contract, 444. 
APPRENTICESHIP. 

A general indenture of apprenticeship, '208. 

The same in a shorter form, 209. 
ARBITRATION. 

Simple agreements to refer, 556. 

Arbitration bond, one or more arbitrators, 556. 

Award of arbitrators (or referees), 557. 
ASSIGNMENTS. 

A brief form of an assignment, to be indorsed on a note, or any 
similar promise or agreement, 445. 

A general assignment, with a power of attorney, 446. 

An assignment of a bond, 446. 

An assignment of a bond, with a power of attorney, and a cove- 
nant, 447. 

An assignment of a judgment, in the form of an indenture, 447 

An assignment of wages, with a power of attorney, 448. 
ATTORNEY. (See Power of Attorney.) 

BILL OF EXCHANGE. (See Promissory Note.) 
BILL OF LADING. , (See Receipts and Rkleases.) 
BILL OF SALE. (See Purchase and Sale of Goods and Chat- 
tels.) 
BONDS. 

A simple bond, without condition, 450. 

A bond for payment of money, with a condition to that effect, with 

a power of attorney to confess judgment annexed, 451. 
A bond for conveyance of a parcel of land, 452. 
A bond for a deed of land, with acknowledgment before a notary 

public, 453. 
A bond in another form, for conveyance of land, with acknowledg- 
ment, 453. 
A bond to a corporation for payment of money due for contribution 
to capital stock, with a power of attorney to confess judgment, 
454. 

(See also Assignments.) 

DEEDS CONVEYING OR CONCERNING REAL PROPERTY. 

A deed-poll of warranty, in common use in New England, 289. 
Deed of gift by indenture, without any warranty whatever, 290. 
Deed of bargain and sale without any warranty, 291. 
Quitclaim deed without any warranty, 292. 
Deed-poll of release and conveyance. Short form, 293. 
Deed with special warranty against the grantor only, 293. 
Quitclaim deed. Long form, with waiver of homestead, 295. 
Deed with covenant against grantor, without release of homestead or 
dower, 296. 



INDEX OF FORMS. 741 



DEEDS CONVEYING REAL PROPERTY — Continued. 

Separate relinquishment of homestead and dower in land sold under 

execution, 297. 
Full warranty deed, by indenture, without release of homestead or 

dower, 298. 
Warranty deed. Short form, with release of homestead and dower, 

300. 
Warranty deed, with covenant against nuisances, without release of 

homestead or dower, 801. 
Bond for a deed, 303. 

Contract for sale of land, with penal obligation, 304. 
Power of attorney to sell lands, 305. 

Trust-deed for the benefit of a wife or some other person, 306. 
Trust-deed to secure payment of a note, without release of home- 
stead or dower, 308. 
Trust-deed to secure a debt. Fuller form, with release of dower, 309. 
Trust-deed to secure a note. Shorter form, with warranty and re* 

lease of homestead and dower, 312. 
Deed from trustees, 314. 
Deed of master in chancery, 315. 

Sheriff's deed on execution, in use in the Western States, 316 
Sheriff's deed, in use in New England, 317. 
Sheriff's tax-deed, in use in the Western States, 319. 
Deed of executor, in use in the Eastern States, 320. 
Deed of executor, in use in the Middle States, 321. 
Deed of administrator of intestate, 323. 
Deed-poll of guardian of minor, 325. 

Deed of referee on foreclosure, in use in the Middle States, 326. 
Deed of collector of taxes, 328. 
Deed of assignee, in use in the Western States, 329. 
Acknowledgment of grantor and wife before commissioner for 

another State, 331. 

EXECUTORS AND ADMINISTRATORS. 

Petition to be appointed executor without further notice, 268. 

Executor's bond, 269. 

Bond of executor, who is also residuary legatee, 270. 

Administrator's bond, 270. 

Administrator's petition for leave to sell a part of the real estate, 271. 

Bond of administrator licensed to sell real estate, 272. 

Account of executor, 273. 

GUARANTIES. 

A guaranty to be indorsed on a note, 460. 
A guaranty of a note, on a separate paper, 460. 
A guaranty in another way, 460. 
A letter of guaranty, 461. 

A guaranty with collaterals, authorizing sales, 461. 
A guaranty with collaterals, promising additional security or author- 
izing sale, 461. 



742 INDEX OF FORMS. 



HABEA S CORP US, a writ of, 175. 
HUSBAND AND WIFE. 

An indenture to put in trust the property of an unmarried woman, 237. 

Another form of indenture for the same purpose, 242. 

INFANTS. 

Adult's confirmation of his promise as a minor, 205. 
INSURANCE AGAINST FIRE. 

Notice to the insurance company of a loss by fire, 594. 
A similar notice, with a sworn statement and certificate, 595. 
Assignment of a policy to be indorsed thereon, 596. 
Assignment of a policy by a separate instrument, 596. 

LEASES OF HOUSES AND LANDS OR REAL ESTATE. 

A short form of a lease, 383. 

A fuller form, with a provision for abatement of rents, 384. 

A short form of lease, in use in the Western States, 386. 

A lease of city property, in use in Chicago, 386. 

A lease, with provisions for taxes and assessment, 389. 

A lease, with covenants about water-rate and injury by fire; in use 

in New York, 390. 
A lease by grant, in use in the Western States, 392. 
A lease by certificate, with surety, 393; 
A lease of city property, in use in St. Louis, 394. 
What is called a country lease, in use in the Western States, 395. 
A ground lease, 397. 

An assignment of lease, and ground-rent, 400. 
A lease containing chattel mortgage covenants, to secure the rent, 402. 
A building lease, 405. 
A mining lease, 406. 

A lease of land, supposed to contain oil, salt, or other minerals, 407. 
An assignment of a lease, 408. 

Landlord's notice to quit for non-payment of rent. Short form, 409. 
Landlord's notice to quit for non-payment of rent. Another form, 409. 
Landlord's notice to pay rent due, or quit, 410. 
Landlord's notice to leave at the end of the term, 410. 
Landlord's notice to determine a tenancy at will, 410. 
A receipt for rent, in use in New York, 411. 
LIMITED PARTNERSHIP. (See Partnership.) 

MECHANIC'S LIEN. 

A notice of a claim, to be filed with the clerk of the county, 651. 

A bill of particulars of a mechanic's claim, 652. 

A release and discharge of a mechanic's Hen, 652. 

The same in a more specific form, 653. 
MORTGAGES OF GOODS AND CHATTELS, OR PERSONAL 
PROPERTY. 

A mortgage of personal property, 374. 

A mortgage of personal property, with warranty, 375. 

A mortgage of personal property, with a power of sale, 376. 

Another form of a deed for the same purpose, 377. 



INDEX OF FORMS. 743 



MORTGAGES OF LAND. 

Promissory note, to be secured by mortgage, 331. 

Bonds to be secured by a mortgage, 332. 

Mortgage without power of sale and without warranty, but with 
release of homestead and dower, 332. 

Mortgage with power of sale, to secure a bond without release of 
dower, 334. 

Mortgage to secure a debt, with power of sale. Short form, 335. 

Mortgage to secure a debt. Fuller form, with power of sale, 336. 

Deed-poll of mortgage, with power to sell and insurance clause, 
and release of dower and homestead, 338. 

Mortgage by indenture, with power of sale and interest and insur- 
ance clause, to secure a bond, 340. 

Mortgage to executors, with power of sale, 342. 

Mortgage of a lease, 344. 

Mortgagee's deed under a power of sale, 345. 

Assignment of mortgage. Short form, 317. 

Assignment of mortgage, with power of attorney, 348. 

Assignment of mortgage by a corporation, 349. 

Discharge of mortgage. Short form, 350. 

Release and quitclaim of mortgage, as used in the Western States, 350. 

Discharge of mortgage, as used in the Middle States, 351. 

Discharge and satisfaction of a mortgage by a corporation, 352. 

Release of a part of the mortgaged premises, 352. 

Deed extending a mortgage, 353. 

NATURALIZATION. 

Preliminary declaration of intention, 90. 
Certificate of the clerk to the declaration, 91. 
Application for admission as a citizen, 91. 
Deposition and oath of witnesses, 92. 
Oath of petitioner, 92. 
Certificate of clerk to the oath, 93. 
Certificate of clerk for record, 93. 
NOTE OF HAND. (See Promissory Note.) 

PARTNERSHIP. 

Articles of copartnership between two tradesmen, 546. 
Shorter form of articles of copartnership, 549. 
Certificate of a limited partnership, with acknowledgments and 
oath, 550. 
POWER OF ATTORNEY. (See Agency, Bonds, Assignments, and 

Mortgages of Land.) 
PROMISSORY NOTE, OR NOTE OF HAND. 
A common form, 482. 

A common form of a bill of exchange, 482. 
A note given for a chattel sold, with a condition preserving the 

ownership of the seller, 485. 
A judgment note, with waiver of exemption and other rights, 509. 
A judgment note, with waiver and a power of attorney, 510. 
A judgment note, with fuller waiver, and a power of attorney, 511 



744 INDEX OF FORMS. 



PROXY. (See Agency.) 

PURCHASE AND SALE OF GOODS AND CHATTELS. 

Bill of sale of goods and chattels, 367. 

Bill of sale of personal property, with a condition to make it a 
mortgage, with power of sale, 368. 

RECEIPTS AND RELEASES. 

A receipt in simplest form, 469. 

A receipt, stating on what account the money is received, 470. 

A receipt, stating the purpose for which the money or articles are 
received, 470. 

A general release, 470. 

A mutual general release, by indenture, 471. 

A release from creditors to a debtor, under a composition, 471. 

A release of all legacies, 472. 

A release of a bond, it being lost, 472. 

A release of a judgment, 473. 

A release of a condition, 474. 

A release of a covenant contained in an indenture of lease, 474. 

A release in extinguishment of a power, 475. 

A release from a lessor to a lessee (upon his surrendering his lease), 
from the covenants therein, 475. 

A general release of dower, 476. 

A release of dower to the heir, 477. 

A release of dower, in consideration of an annuity given by will, 
477. 

A release of dower, where the present husband of the widow joins 
in the deed, 478. 

A release of a trust, 478. 

A release of right to lands, 479. 

A release between two traders, on settling accounts, 480. 
. A receipt, in the nature of a bill of lading, of a steam-packet com- 
pany, 573. 

Same, of an express company, 574. 
REFERENCE, REFEREES, AND AWARD. (See Arbitration.) 

WILLS. 

Form of a will, 259. 

Form of a codicil, 259. 

Form of a will with many trusts, 260. 

Form of a will with other trusts and provisions, 262. 



(Whole number of pages, including Table of Contents, T60.) 



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